Dr. D.M. Misra, J.
1. These two miscellaneous applications are filed on 14th March, 2013 along with their appeal seeking condonation of delay of 221 days.
2. On the first date of hearing i.e. 12.07.2013, the ld. Advocate for the Applicant, has submitted that as the impugned Order-in-Original No.11/Cus/CC(P)/WB/2012 dated 07.05.2012 passed by Commr. of Customs (Preventive), West Bengal, Kolkata, had not been communicated/received by the Applicant, therefore, they had approached the Department for supply of a copy of the order on 7th January, 2013 for filing the appeal before this Tribunal. The Superintendent of Customs, declined to accept the said letter dated 7th January, 2013 and informed the Applicant that the order dated 7th May, 2012, had been dispatched to them by Speed Post. However, on persuasion by the Applicant, the Superintendent of Customs, issued an attested copy of the said impugned order on 22nd January, 2013. Consequently, the Appeal was filed on 14th March, 2013.
3. It is his submission that if the date of communication of the order dated 7th May, 2012, is considered as 22nd January, 2013, then, there would not be any delay. However, as a matter of abundant precaution, they had filed the present miscellaneous applications. The ld. Advocate has fairly accepted that along with the main noticee, the Applicant had also challenged the impugned order before the Honble Calcutta High Court by filing Writ Petition under Article 226 of the Constitution of India, which was registered as W.P.No.457 of 2012 and disposed off subsequently.
4. As the Applicant had categorically claimed that they were not communicated/served with the order dated 7th May, 2012, the ld. Spl.Counsel for the Revenue, was directed to ascertain the said claim of the Applicant. Consequently, the matter was adjourned to 8th August, 2012, 19th August, 2013, 9th September, 2013, 18th September, 2013, 28th November, 2013 and 12th December, 2013, so as to ascertain the factual position.
5. The ld. Spl. Counsel for the Revenue, had initially placed a letter dated 27th August, 2013, received from the Deputy Commissioner of Customs, enclosing therewith an extract copy of Despatch Register maintaining by the Department. In the said Register, it is shown that the order copy has been sent to the Applicant against Speed Post Article No.EW757657425IN on 18.05.2012. When the same was placed, the ld.Advocate for the Applicant, declined that even though the said Speed Post had been acknowledged, but the signature is not of the Applicant, nor, he had received the same.
6. Consequently, the Department was directed to ascertain as to whom the said Speed Post was delivered. Consequently, the ld. Spl.Counsel sought time to ascertain the receipt of the said order delivered at the address of CHA. After making necessary investigation, the ld. Spl.Counsel for the Revenue, on a report from the Customs House, has submitted that in his statement dated 20.11.2013, Shri Subhas Chandra Ghosh, Partner of CHA, has admitted that the signature shown in the acknowledgement page of Speed Post in the Despatch Register produced by the Customs Department as obtained from the postal authority, is his signature. It is the submission of the ld.Spl.Counsel that the approach of the Applicant from the very beginning is not bonafide, inasmuch as in the Affidavit dated 10.07.2013 in support of their claim, the Applicants had categorically stated that they have not been communicated with the order ; but, when the Department placed the acknowledgement copy, procured from the Postal Department, then the Applicant disputed the signature in the acknowledgement as neither belonging to him nor to the CHA firm, where he has been working. Later, on issuing summon and investigation carried out by the Customs House, it was found that the order was communicated, but the signature was of Shri Subhas Chandra Ghosh, partner of M/s Akshoy Kumar Ghosh and Company, the main Noticee. The ld.Spl.Counsel has further submitted that the Applicant has challenged the impugned order dated 7th May, 2012 along with the CHA by filing a Writ Petition before the Honble Calcutta High Court in June, 2013, therefore, it cannot be said that the Applicant was not communicated with the impugned order dated 7th May, 2012.
7. It is his submission that in view of Section 129A (3), the appeal should be filed within three months from the date of communication of the order. In the present case, the Applicant was communicated with the order on 18th May, 2012 by sending through Speed Post, which has been acknowledged received on 21st May, 2012 and also undisputed fact of filing the Writ Petition before the Honble Calcutta High Court, proves the fact that the order has been communicated to the Applicant. Besides, the Applicants conduct is not bonafide, inasmuch as, all along, they have been disputing the service of the said order through Speed Post. Therefore, in view of the decision of the Honble Apex Court in the case of Office of the Chief Post Master General Vs. Living Media India Ltd.: 2012 (277) ELT 0289 (S.C.), the delay of 221 days being not bonafide and without sufficient cause, therefore, deserves not to be condoned.
8. Heard both sides and perused the records. We find that initial claim of the Applicant is that they did not receive the order dated 7th May, 2012, till 22nd January, 2013. It has been consistently argued that the Department had not served a copy of the order and hence, they could not prefer an appeal before this Tribunal, within prescribed period of three months from the date of communication of the order. We find from the Affidavit dated 10th July, 2013 that a categorical claim has been made by the Applicant, Shri Avijit Swarnakar that he had not received the impugned order. Consequently, the Department was directed to produce proof of service, if any. When the Department produced a letter along with the delivery slip, from the GPO, Kolkata, the Applicant disputed the said delivery slip by contending that it was neither received for on behalf of the firm nor any one employed in the firm. Consequently, after making necessary investigation, it was established by the Department that the signature mentioned in the delivery slip is one, Mr.Subhas Chandra Ghosh, partner of CHA firm. We find that the plea taken by the Applicant all along during the course of hearing of miscellaneous application, is not bonafide. Thus, we are of the view that since the Applicant has been communicated with the order on 21st May, 2012, which has also evident from the fact that they have filed a Writ Petition before the Honble Calcutta High Court, challenging the impugned order along with the main notice, but choose not to file the appeal before this Tribunal along with the appeal thereafter, filed by the main Applicant, the claim that they have not been communicated with the order, therefore, the appeal could not be filed in time, is devoid of merit. We also find that the approach of the Applicant is not bonafide all along and also they could not show sufficient cause warranting condonation of the delay. In view of the decision of the Honble Supreme Court in the Living Media India Ltd. case (cited supra), the delay can be condoned when the approach is bonafide and sufficient cause is shown warranting such condonation. Following the said principle, we do not find any merit in the present application seeking condonation of delay of 221 days, accordingly, the same is dismissed. Consequently, the appeal and stay petition are also dismissed.