Dilip Kumar Seth, J. - (1.) After having heard the learned Counsel for the parties on the question of interim order, it appears that both the learned Counsel had addressed the Court on the merit of the appeal. In the circumstances. the appeal is treated as on day's list by consent of the parties and is being disposed of in the following manner : The order dated 14th of February, 2001 was communicated to the assessee on 6th of May. 2002. It is contended that the appeal was filed in July 2002. Mr. Banerjee appearing on behalf of the Customs Authorities, disputes the said date. He has two fold submissions; one, that the order was communicated before 6th of May, 2002 and the other, that the appeal was not filed in July, 2002. According to him, the Memorandum of Appeal was presented after the expiry of the period of limitation. provided in section 129 (A) (3) of the Customs Act. 1962. Mr. Sen. however, contends that 6th May. 2002 is the first date of communication and the date of preferring the appeal was July, 2002, which is well within 90 clays from the date of communication. He submits that the appeal was presented without the certified copy of the order since it was not furnished and that there was no scope for applying for the certified copy. Despite having addressed a letter on 13th of May, 2002, copies were furnished only on 1st of August. 2003 when for the first time the order passed by the Commissioner of Customs on the appeal was received by the petitioners. In the meantime, by an order dated 31st of October, 2002. the learned Tribunal was pleased to dismiss the appeal on the ground that the order under appeal was not enclosed with the Memorandum of Appeal.
(2.) On 9th March, 2004. the appellant applied for recalling the said order dated 31st of October. 2002. This was dismissed on 20th of May, 2004. A writ petition was moved against the said order dated 20th of May. 2004 which was allowed by the learned Single Judge by an order dated 11th of June, 2004 passed in W.P. No. 9098 (W) of 2004. The learned Judge had decided the case in favour of the appellant. but, however, noted that after the removal of the defect, the appeal shall he treated to have been filed on March 9, 2004. namely the date when the certified copy was produced and that the application filed on 9th of March, 2004 by the appellant shall be treated as application for condonation of delay.
(3.) This is where Mr. Sen joins issue. According to him, the order is inconsistent in view of Rule 11 of the CEGAT Rules. According to him, as soon as the defect is removed, the Memorandum of Appeal is regularized. the date of filing will relate back to the date of presentation along with the detect. Therefore, there would be no question of condonation of delay. Mr. Banerjee. however, contends that on fact there is delay and that it cannot be denied that there was delay, which requires condonation before the CEGAT.;