TaxTMI 
TaxTMI 
2014 (1) TMI 280
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....r condoning delay, the submission made by the applicant is that the applicant had not received the copy of the order originally dispatched by the office of the adjudicating authority. The applicant submits that he came to know about the outcome of the adjudication proceedings and also about further proceedings by other persons involved in the adjudicated matter from his lawyer who gave him a copy of the impugned order. Then applicant states that he immediately searched his office records and enquired with the staff and noticed that neither the impugned order was served on him nor any demand for collecting the penalty was made on the applicant in this case. The relevant paragraphs in the application for condoning delay are reproduced below :....
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.... of the impugned order. I submit that I represented to my counsel that the impugned order was not served nor any demand of the penalty amount was ever made by the authorities and also due to domestic difficulties on account of sickness and lapse of a long time, the issues were also forgotten. I submit that i was advised to file the present appeal as the impugned order was not in any case sustainable against the appellants either in law or on facts and thus resulting in injustice to the appellants rendering vulnerable to further injustice and hardship by further and also consequential proceedings on account of the impugned order. I submit that the impugned order was passed on 28-5-2009 and the appeal should have been filed three months from ....
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...., K.M. Towers, Binny Compound II Street, Kumaran Road, Tirupur 641 601 was received by Tirupur HPO, the delivery Office on 30/06/2009 and returned to Sender with remarks "Unclaimed' on 07/07/2009. The Speed post was redelivered to your Office on 08/07/2009. The Copy of delivery slip is enclosed herewith for your kind information." 4. The applicant was given time to study the report of the department of posts as to why it should not be considered that the order was served on the applicant in time and non-receipt of the order was because of the fact that the applicant had not claimed the postal cover when the postal authorities tried servethe letter to him. On 13-12-2013, the matter was heard along with additional affidavit filed by the appl....
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....eived or intimated and thus the impugned order was not served on the appellants. I further submit that as the appeal was filed immediately after the receipt of a copy of the order as stated in the abovepetition, there was no delay in any manner as known to law. I thus submit that in the above facts and circumstances, if there be any delay, the same is bonafide and neither willful nor wanton and thus the interests of justice warrant that the said delay deserve to be condoned. 4. I submit that as the delay in filing the above appeal is not attributable to the appellant for any reason, the delay of 546 days in filing the above appeal deserves to be condoned." &nbs....
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....bsp; 7. Opposing the prayer, Ld. AR for Revenue relies on the decision of the Hon.Madras High Court in ETA General Pvt. Ltd. Vs CC Chennai - 2013 (291) ELT 27 (Mad.) and Jai Enterprises Vs CC(A) Chennai - 2006 (206) ELT 41 (Mad.). He points out the two decisions of the Hon Apex Court relied upon by the Hon.High Court as in para 11 of the said order of Jai Enterprises wherein the Hon. Apex Court has observed that when a notice is returned by the sendee as 'unclaimed' such date would be the commencing date in reckoning the period of limitation. The said paragraph is reproduced below: 11. Now this Court has to consider the applicability of the decisions relied upon....
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....dorsements 'absent' and 'intimation delivered' should be construed as actual service on the petitioner. If the above observation of the Honourable Supreme Court of India is carefully considered it could be easily seen that for the purpose of fixing the commencing date in reckoning the period contemplated under Clause (d) to the proviso of Section 138 of the Negotiable Instruments Act, the Honourable Supreme Court of India has observed as above, but clarified the said observation with the further observation that of course such reckoning would be without prejudice to the right of the drawer of the cheque to show that he had no knowledge that the notice was brought to his address. In the case on hand such an opportunity will not be available ....