D.K. Seth, J. - (1.) THE petitioner preferred an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter referred to as "CEGAT") together with an application for condonation of delay. The application for condonation of delay may be found at page 32, which is annexed to the Memorandum of Appeal. Subsequently, supplementary statements were filed in order to strengthen the application for condonation of delay. This was rejected by an order dated 16th January, 2002 passed in Miscellaneous Application No. 56 of 1999 in connection with appeal No. E/V -109/99. It is this order contained in annexure P -10, which is under challenge. The learned Counsel for the petitioner relying on the application for condonation of delay contends that there was sufficient explanation but the learned Tribunal had mechanically rejected the same. Me had submitted that the order contained in annexure P -10 should be set aside. He had also relied on a decision in the case of N. Balakrishnan v. M. Krishnamurthy reported in (1998) 7 Supreme Court Cases 123 to support his contention.
(2.) MR . Kalyan Kr. Bandopadhyay, learned Counsel appearing on behalf of the respondents, on the other hand, points that out since this is a question of fact this is determined by the learned Tribunal and as such, this Court, sitting in Writ Jurisdiction, cannot interfere with the same unless it is shown to be perverse. He points out that the explanation given can by no stretch of imagination can be said to be sufficient explanation at all. Respondents had admitted the communication of the order and pleaded some internal arrangements for which respondents are in no way concerned. He also points out from the order contained in annexure P -10 that there is no infirmity in the order. The same is a well reasoned order and the reasons have been spelt out in the order itself. Therefore, the Court should not interfere with the same. The writ petition should, therefore, be dismissed. Having heard the learned Counsel for the parties, it appears that from the dates disclosed in the application for condonation of delay, that after the hearing was over no order was passed and it was expected that the order would be passed and communicated to the petitioner. On the plea that no order has been passed and the matter is pending the respondents had taken steps under the Kar Vivad Samadhan Scheme, 1998, in which only the pending matters are covered. At the time of hearing the said application for condonation of delay it was disclosed that the Scheme does not apply in the case of the petitioner since matter is not pending, inasmuch as it was disposed of and order was communicated to the petitioner. Thereafter the petitioner applied for certified copy of the order. Having obtained the certified copy, the petitioner had preferred an appeal. It is further explained that the order was received in the office which is apparent from the Register of receipt of mails. It is pointed out that since it was not placed to any designated officer, therefore, the mail which was received was not forwarded to any officer and ultimately, it could not be traced. The xerox copy of the said Register has since been annexed, wherefrom it appears that the column of sending the mail receipt is lying blank, whereas in respect of other articles the same appears to have been sent to the respective designated officer as mentioned in the said Register. On this ground the delay has been asked to be condoned. It appears that the learned Tribunal had considered the same, and it came to a finding that it was received by the respondents and therefore, the explanation does not seem to be satisfactory and there was about 7 months delay.
(3.) THE learned Tribunal did not consider this aspect that the petitioners were labouring under the plea that the matter was pending and had attempted to get the matter settled through the said Kar Vivad Samadhan Scheme. Therefore, it appears that the petitioners were under the bona fide belief that the matter was pending. As soon as it was communicated to them they had applied for certified copy and filed the appeal. It is contended that it was received but it was not placed before the appropriate officer. It could be an internal system of the administration, but it might be a reasonable explanation, having regard to the facts and circumstances of the case if it is shown that it was a genuine case and that there was no mala fide on the part of the petitioner or that there was no attempt to delay the process.;