Appeal deemed timely filed based on deemed date of order communication.

The Tribunal found that the appeal filed on 21-5-1985 was within the three-month time limit for filing appeals under Section 129-A of the Customs Act, 1962. As the department failed to prove the date of order communication, the applicant's receipt of the order on 22-2-1985 was considered the communication date. Consequently, the appeal was deemed timely filed, and the application for condonation of delay was disposed of accordingly.

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Issues:
Delay in filing the appeal CD (Bom.) 315 of 1985.

Analysis:
The applicant sought condonation of delay in filing the appeal, stating that he received the copy of the order-in-original on 22-2-1985, although the order was dated 18-1-1984. The appeal was filed on 21-5-1985, within three months of receiving the order. The applicant contended that he was not directed to take delivery of the order earlier and only received it after requesting a copy on 31-12-1984.

During the hearing, the applicant's Advocate referred to Section 131-A of the Customs Act, 1962, which deals with such matters. The respondent Collector's representative stated that the date of issue of the order was 6-2-1984 but could not provide information on when the order was communicated to the applicant.

The Tribunal considered two key questions: (i) whether the appeal filed on 21-5-1985 was within the three-month time limit, and (ii) if not, whether there was sufficient cause for the delay. Section 129-A mandates filing appeals within three months of order communication, with modes of service specified under Section 153.

The Tribunal noted that the order's issue date was 6-2-1984, creating a rebuttable presumption of dispatch. However, if a party denies receipt and claims non-communication, the burden shifts to the department to prove dispatch. The department failed to provide evidence despite opportunities, leading to the applicant's statement that he received the order on 22-2-1985.

Since the department did not prove the date of order communication, the date of receipt by the applicant was considered the communication date, making the appeal timely filed. Consequently, the issue of delay or condonation did not arise, and the appeal was treated as within the prescribed period of limitation. Therefore, the application for condonation of delay was disposed of accordingly.

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