1996 (8) TMI 332 - AT - Customs

Tribunal allows appeal despite delay, citing valid reasons, including department's failure to provide order copy.

The Tribunal, by majority opinion and the decision of the third member, condoned the delay in filing the appeal, finding that the applicant had sufficient ... Appeal - Limitation - Condonation of delay Issues Involved:1. Whether there was constructive notice to the applicant about the adjudication order on 1-12-1986, i.e., the date on which the adjudication order was displayed on the notice board.2. Whether in the facts and circumstances of the case, the applicant has 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.Issue-wise Detailed Analysis:1. Constructive Notice of the Adjudication OrderThe primary issue was whether the applicant had constructive notice of the adjudication order when it was displayed on the notice board on 1-12-1986. The applicant claimed that he did not receive the order because he was away for treatment and only learned about the order after returning and inquiring multiple times. The department argued that displaying the order on the notice board constituted proper compliance with Section 153 of the Customs Act, 1962, and thus the applicant had constructive notice from 1-12-1986.The Tribunal's findings were divided:- Majority Opinion: The majority held that the display of the order on the notice board did not amount to receipt by the appellant. The communication was not completed as the appellant did not receive the order, and the right to appeal and the time limit would be determined by the actual receipt of the order. Thus, the delay in filing the appeal was condoned.- Dissenting Opinion: The dissenting member argued that the display of the order on the notice board constituted constructive delivery as per Section 153(b) of the Customs Act. Therefore, the period of limitation started from 1-12-1986, and the appeal should have been filed within three months from that date.2. Sufficient Cause for Delay in Filing the AppealThe second issue was whether the applicant had shown sufficient cause for the delay in filing the appeal. The applicant argued that he was away for medical treatment and did not receive the order despite multiple requests for a certified copy. The department opposed the condonation, stating that the delay was more than two years and the applicant had constructive notice from the date the order was displayed on the notice board.The Tribunal's findings were again divided:- Majority Opinion: The majority found that the applicant had sufficient cause for the delay. The department's failure to provide a certified copy of the order despite multiple requests and the applicant's medical treatment constituted sufficient cause. The delay was thus condoned.- Dissenting Opinion: The dissenting member held that the applicant was negligent and inactive. The applicant failed to establish sufficient cause for the delay from June 1987 to March 1989. The member emphasized that the applicant did not disclose the date he saw the notice board copy of the order and failed to file the appeal within the prescribed time limit.Third Member's Decision:The matter was referred to a third member due to the difference in opinion. The third member reviewed the facts and additional records. The third member found that:- The department did not prove that the adjudication order was displayed on the notice board on 1-12-1986.- The term 'Customs House' was not clearly defined, and it was questionable whether Muzaffarpur was the proper place for displaying the notice.- The department failed to serve the order by tendering it or by registered post as required by Section 153(a) of the Customs Act.The third member concluded that the limitation period had not started running against the appellant, and the delay was substantially contributed to by the department's failure to respond to the appellant's inquiries. Even assuming deemed service on 1-12-1986, there was sufficient cause for the delay, and the appeal was filed within three months after the appellant obtained a copy from the notice board. Therefore, the delay was condoned.Conclusion:The Tribunal, by majority opinion and the decision of the third member, condoned the delay in filing the appeal, finding that the applicant had sufficient cause for the delay due to the department's failure to provide a certified copy of the order and the applicant's medical treatment. The appeal was allowed to proceed.