T.P. Nambiar, Member (J) -
(1.) THE learned Advocate, Shri P.N. Awasthi appeared for the Petitioners and Shri B.B. Sarkar, learned Junior Departmental Representative for the respondent Collector. Shri P.N. Awasthi stated that the impugned order was received by Shri Ramesh Kumar Ghai on 10-6-1989. Originally, a joint appeal was filed by both Shri Ramesh Kumar Ghai and Shri Satnam Dass Ghai. Shri S.D. Ghai is the owner of the truck in question and Shri R.K. Ghai is the son of Shri S.D. Ghai and the driver of the said truck. This joint appeal was delayed by one day. Shri Awasthi also stated that as per the orders of this Tribunal Satnam Dass Ghai filed another separate appeal with another condonation application. Shri Awasthi therefore contended that the original order of adjudication which was a certified copy was received by Shri Ramesh Kumar Ghai on 10-6-1989. THErefore, the time is to be counted from 10-6-1989. In this connection, he drew our attention to the affidavit filed by Shri Satnam Dass Ghai, which is during April, 1990, stating that he has not received any Adjudication Order at any time. Shri Awasthi also contended that against this affidavit there is no counter-affidavit filed by the Department. THErefore, this date is the relevant date. THE delay of one day therefore, has to be condoned. He also stated that Shri Satnam Dass Ghai has filed a separate appeal as per the direction of this Tribunal and therefore, the delay in filing that appeal also may be condoned. But the J.D.R., Shri Sarkar drew our attention with respect to the case records which he had received from the Department. It was contended by him that the order-in-original was sent to their learned Advocate, Shri Mahendra Srivastava and thereafter, Shri Srivastava wrote a letter dated 9-9-1987 stating that the copy was not served on him as he was out of station. Shri Sarkar pointed out that in that letter the learned Advocate, Shri Srivastava had stated that another order-in-original may be sent to him. In this connection, he pointed out that in that letter the learned Advocate had clearly mentioned the Order No. of the Adjudication. In view of that letter the Department despatched another copy by a covering letter dated 17-9-1987. THErefore, Shri Sarkar contended that this letter along with the original order of adjudication should have been received by the party(s) within a week or 10 (ten) days. In this connection, Shri Sarkar pointed out that the registered letter is presumed to have been received by the party(s). In this connection, he relied on the decision of the Government of India reported in 1982 (10) ELT 568. Shri Sarkar, therefore, contended that as far as Satnam Dass Ghai is concerned the order-in-original could have been received by him in the year, 1987 itself as there is no further letter from him addressed to the Department. As far as Shri Ramesh Kumar Ghai is concerned, Shri Sarkar pointed out that in his letter dated 4-2-1989 he has shown his address as G-7/1, Shanti Nagar, Kanpur Cantt., Kanpur. He also pointed out that the brother of Ramesh Kumar Ghai by name - Santosh Kumar Ghai had written a letter to the Department dated 5-9-1986 stating that he had received a letter addressed to Ramesh Kumar Ghai and that he received the same by mistake. That letter was returned to the Department by Shri Santosh Kumar Ghai. That order was sent in the address as F-16/1, Shanti Nagar, since the first address furnished was F-16/1. He also pointed out that Ramesh Kumar Ghai has never intimated the Department about the change of address in this regard. Shri Sarkar also pointed out that the very fact that the Adjudication Order number was quoted by his father in the letter written through his Advocate, establishes that they had already received the Adjudication Order and they have been already aware of the letter. He contended that the copies of the letters and correspondence which he has relied on were produced.
(2.) Shri P.N. Awasthi in reply stated that there is no evidence to show that either Satnam Dass Ghai or Ramesh Kumar Ghai had received any other communication from the Department after receiving the letter dated 4-2-1989 from Shri R.K. Ghai. However, Shri Ramesh Kr. Ghai had gone to the Department and on payment of Rs. 10.00 towards the certified copy he had received the same. It was contended that no inference can be drawn that he had already received a copy of the order-in-original and that is why he had paid Rs. 10.00 for getting a certified copy further as was contended by the learned J.D.R. Shri Awasthi also pointed out that no counter-affidavit is filed by the Department to counter the allegations made by the applicant, Shri Satnam Dass Ghai and therefore, those allegations are to be accepted. He also pointed out that the Department has not produced any evidence to show that letter dated 17-9-1987 with a copy of the Adjudication Order was sent to the learned Advocate, Shri Srivastava for Satnam Dass Ghai. It was, therefore, contended that in absence of any such evidence like postal receipts or the like nature, this contention of learned J.D.R. cannot be accepted. He drew our attention to Section 153 of the Customs Act, 1962. He, therefore, contended that the order should have been sent by either registered post or ordinary post to any of the two applicants - S/Shri Satnam Dass Ghai and Ramesh Kumar Ghai. It was his contention that there was no proper service as contemplated under Section 153 of the Customs Act, 1962.
Shri Sarkar in reply contended that the copy sent to Ramesh Kumar Ghai was also sent by ordinary post and he had received it. Therefore, he contended that there was no reason as to why the father of Shri R.K. Ghai, named Shri Satnam Dass Ghai has not received it.
(3.) WE have considered the submissions of both the sides. Ramesh Kumar Ghai, the applicant in M.A. No. 142/89 had filed the application for condonation of delay of the appeal which was filed by both the applicants. Thereafter, as per the direction of the Tribunal Shri Satnam Dass Ghai filed a separate appeal No. C-112/90 and filed another Miscellaneous Application No. 93/90 for condonation of delay in filing this separate appeal. Therefore, if the application for condonation of delay as per the M.A. No. 142/89 is allowed, then the other application No. M.A.-93/90 filed by Satnam Dass Ghai in filing the appeal as per the direction of the Tribunal, also has to be allowed condoning the delay. As far as M.A. No. 142/89 is concerned, Shri Ramesh Kumar Ghai had filed an affidavit stating that he received the order-in-original No. 250/Cus/86 dt. 8-12-1986 only on 10-6-1989. It is also seen from the affidavit that the appeal was sent by registered post on 5-9-1989 and the same was received by this Tribunal on 11-9-1989. Hence, if the order was received on 10-6-1989, the delay had occurred in the postal transit and therefore, the delay in filing the appeal by one day can be condoned as sufficient reasons are made out by the petitioners.;