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TMI Blog1996 (8) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant returned to his place he took up the matter with the Additional Collector wanting to know the outcome of the adjudication case for which he had appeared for personal hearing. He wrote three letters on 3-6-1987, 12-8-1988 and 26-8-1988. Only on 7-11-1988, the Additional Collector replied to him, acknowledging his three letters and informed him that the case had been adjudicated vide Order No. 185 Cus/86, dated 31-10-1986, which when sent to his address by registered post came back undelivered with the remarks Out of station for indefinite period and that the undelivered adjudication order was displayed on the notice board on 1-12-1986 under Section 153 of the Customs Act, 1962. Thereafter he applied to the Additional Collector for a certified copy of the order. This was not given to him despite personal efforts and thereafter the applicant, on the basis of copy made out from the notice board copy of the order, filed the appeal in March, 1989. He could not attach a certified copy of the order along with the appeal, as the same was not given to him by the department despite his request. Hence the learned counsel pleaded for condonation of delay in filing the appeal. He refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered, and the appellant not having been supplied a copy of the order despite his specific request for the same, constitute sufficient cause for us to be satisfied that he was prevented from filing an appeal within the normal time limit. We, accordingly, condone the delay in the filing of the appeal by the appellant. We also direct the appellant to apply to the adjudicating authority for a copy of the adjudication order and submit the same for regularising the documentation of the appeal filed by them. We also direct the Additional Collector of Customs, Muzaffarpur, to supply to the applicant, Shri P.K. Jaiswal a copy of the adjudication order passed against him. Sd/- K. Sankararaman) Member (T) 5. [Contra per : T.P. Nambiar, Member (J)]. I have perused the orders of my learned brother. With great respect I am unable to agree with the conclusions reached by my learned brother. 6. The orders passed by the learned Additional Collector in adjudication Order No. 185-Cus/86, dated 31-10-1986 were sent to the applicant under registered post which was returned undelivered with the remarks out of station for indefinite period . In su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more letters dated 12-8-1988 and 26-8-1988 and the learned Collector ultimately by his letter dated 31-10-1988 intimated him that the order was displayed in the notice board on 1-12-1986. Then also he never looked to the notice board. Instead he wrote another letter on 22-12-1988 asking for a copy of the order and since no copy was sent he filed this appeal on 6-3-1989. 10. In para 6 of the condonation application he stated as follows : No communication/information/intimation has yet been received of my aforesaid letter dated 22-12-1988 and ultimately on the basis of notice board copy of the order (C) dated 31-10-1986 this appeal is being filed . It is thus clear that appellant knows about the publication of the order in the notice board. But he is silent as to on what date he saw the order on the notice board. If he had gone to Calcutta during November, 1986 he should have intimated his new address to the learned Collector which is not done in this case. 11. In order to show that he was ill he had produced some prescriptions. Annexure A is a prescription dated 25-3-1987 by the Doctor showing he was suffering from some ear trouble. Another prescription dated 30-3-1987 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court held that the representation could not be rejected on the ground of being belated, as the adverse entries themselves were intimated to him belatedly. But in this case the appellant has constructive knowledge of the order on 1-12-1986 and thus the above decision is not applicable to the facts of this case. 13. Reliance was also placed on a decision reported in AIR 1989 Gujarat 227 (Brij Kishore v. Jayantilal). That decision is not applicable to the facts of this case. At para 13 of the decision it was held as follows : The case advanced by the petitioner defendant that he entrusted the matter to advocate Sri Makwana and he had not informed him about the matter having been transferred to another advocate is substantiated by the affidavit of Sri Makwana. Once this is accepted it follows that the petitioner was never negligent. He was never inactive or indolent. Because there was some lapse on the part of the advocates the litigant should not be made to suffer . That decision is not applicable to the facts of this case. There the party was not negligent. Here as already narrated by me, the applicant was negligent throughout and was inactive or indolent. He was not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicants have succeeded in showing that there was sufficient cause for him in filing the appeal at a delayed date and whether the delay can be condoned." 17. I need not recapitulate the facts since these are already set out in the orders passed by the ld. Members who comprised the original Bench. There are some additional facts during the proceedings before Third Member which need to be set out. 18. This matter had been heard earlier as by Shri S. Kalyanam, ld. Judicial Member, (as he then was), as a Third Member. Last Note, dictated by him, on hearing of this difference of opinion on 25-7-1991 is as follows : Shri P.K. Jaiswal v. Additional Collector of Customs (P) Muzaffarpur Shri P.K. Das, Advocate, for the Applicants. Shri M.N. Biswas, SDR, for the Respondents. This is a third Member reference and the matter could not unfortunately be proceeded with for want of necessary records from the Department. Shri Biswas, learned SDR sought an adjournment on the ground that though he has received the records from the Collectorate, the particular cover containing the impugned order and despatched to the appellant under Registered Post and returned undelivered is not avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s name and address at S. No. 6 of the endorsement as follows : Shri Pramod Kumar Jaiswal, Jaiswal Mohalla, Nautanwa. The endorsement has been signed by the Additional Collector. 21. After the aforesaid Adjudication Order, the file contains at page 339 a typed copy of an Order of Shri K.V. Vaidyanathan, Collector of Customs (Preventive), Indo-Nepal Border, Patna, sanctioning under Section 137 of the Customs Act, prosecution of two persons namely (1) Shri Anil Kumar Gupta and (2) Shri Ganesh Kumar Kapoor alias Munna with endorsements bearing No. VIII(17)121-Pros/86/9825-26, dated 30-12-1986 signed by Assistant Collector, Customs (T), Patna to (i) Deputy Commissioner of Customs (Preventive), Gorakhpur along with case file and (ii) Additional Collector of Customs (Preventive), Muzaffarpur at page 341. All subsequent correspondence upto page 359 in the file relates to the aspect of prosecution and none of the correspondence relates to the service or communication of the impugned order to the persons including the appellants. 22. There is no indication either on the notesheet side or on the correspondence side that the impugned order as sent by registered post on 3-11-1986 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Collector of Customs (Preventive), Muzaffarpur. Going by the fact that Lucknow Customs House is the proper Customs House for the purposes of this case, displaying the impugned order on the notice board at Muzaffarpur does not meet the requirement of Section 153 of the Customs Act. 25. Looking at the problem from another angle, the term Customs House has not been defined in the Customs Act. From a common parlance angle, it may be termed as the premises from where the work relating to import or export of goods through a Customs Station , as defined in the Customs Act, takes place. No Notification has been brought to my notice that declares `Muzaffarpur as a `Customs Station , although, `Nautanwa has been declared a Customs Station vide Notification No. 63/94-Cus.(N.T.), dated 21-11-1994. One could, perhaps, argue with some force that Nautanwa is the proper `Customs Station and consequently Nautanwa Customs Office is the Customs House for the purposes of this case. I should make it clear that I do not hold that Nautanwa is the proper Customs House. 26. It has been argued that the case has been adjudicated at Muzaffarpur and, therefore, displaying on the notice boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal has been made by the appellant after making a copy from the notice board at Muzafarpur, since the authorities have not provided him with a certified copy even on request. In view of the foregoing discussion, I answer the first question in the negative. 29. In veiw of my findings as above on the first question whether there has been a `deemed service of the impugned order on 1-12-1986 on the appellant, I need not go into the other point of difference and express an opinion because it merely becomes an academic exercise. Nevertheless, I will record my finding on the second question as well, assuming the affirmative answer to the first question. 30. It is the applicant/appellant s case that since November, 1986, he had come to Calcutta to a relative s place at Vivekananda Road for treatment of several ailments and he remained in Calcutta till the end of May, 1987 when he returned to Gorakhpur. In support of his foregoing case, he has several documents, prescriptions and reports of various medical tests, beginning from 25-3-1987 to 10-5-1987 and then again on 11-6-1987. This has been stated by the applicant of affidavit. There is no counter affidavit from the department. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is also a plausible one. There being no circumstance or other evidence to the contrary, it is believable. From then onward, I observe that the appellant had been pursuing with the department and he had written three letters enquiring whether any adjudication order has been passed. It is also evident from Department s reply dated 7-11-1988 that the department did receive the three letters dated 3-6-1987, 12-8-1988 26-8-1988 from the appellant but did not consider it appropriate to reply within reasonable time, that the adjudication order had been passed on 31-10-1986 and it was received back undelivered and has been affixed on the notice board on 1-12-1986. It passes one s imagination why this reply could not be given earlier on receipt of the first letter dated 3-6-1987 from the appellant. (This indifference of the department towards the appellant s letters throws a doubt on the date of displaying the impugned order on the notice board when seen in the absence of any evidence in the relevant file of the department about that fact). By letter dated 22-12-1988, the appellant asked for a certified copy of order on payment of charges. Department has failed to reply to this letter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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