Full Judgment
2. Arguing on the application No.C/COD/32/95-D Shri Sanjeev Sachdeva, Ld. SDR submitted that the impugned order-in-appeal was communicated on 19-5-1994 (wrongly mentioned as 26-5-1994 in C.A. 3 Form - Appeal Memo and the appeal was filed on 10-2-1995 by Speed Post. Ld. SDR submitted that on receipt of the impugned order-in-appeal due to some mistake copy of the order was sent to Appraising Group in place of sending it to the Review Cell of the Customs House and, therefore, it was not put up before the Collector for orders for filing the appeal and the order was obtained on 3-2-1995 for filing the appeal against that order. He further submitted that when asked by the Bench to give the detailed chart in support of the application for condonation, the Collector has stated that the ceiling of top roof of the Appraising Section collapsed in mid June, 1994 due to heavy rain in the region and several documents of Appraising Section were buried. In July, 1994 C.P.W.D. van informed on phone about the incident and accordingly, they inspected the hall where the incident occurred. In mid July, 1994 debris were cleared and documents were recovered. However, it was seen that the documents which were buried were intermingled and were mixed with each other and the files were in very bad shape. During mid July, 1994 to January, 1995 the documents/files which were buried and subsequently recovered were studied in order to take necessary action. The impugned order-in-appeal was also recovered from the debris and the file was properly reconstructed. It was then observed that the action on the impugned order-in-appeal was pending. In February, 1995 the order for filing the appeal was obtained on 3-2-1995 and the appeal was filed on 8-2-1995.
In reply Shri P.M. Dave, Ld. Counsel submitted that in the application in hand for condonation of delay there was no mention that the file was sent to the Appraising Group and further that the top roof of the Appraising Group Section collapsed and, therefore, CPWD was informed and repairs were carried on. He stressed that the subsequent contention of the Department that the ceiling of the top roof of the Appraising Section collapsed and the records were buried and it was subsequently reconstructed is afterthought as there is even no whisper in the application in hand for the condonation of delay. He also submitted that as per the correspondence produced by the Department from time to time it is clear that the nature of the incident was a very minor one which in turn indicates that the contention of the Department that the record was buried and the impugned order-in-appeal was intermingled or it was found subsequently, appears to be a cover-up attempt to explain the delay. He also highlighted that in the CA 3 Form - the Appeal Memo.
- the Collector has stated that impugned order-in-appeal was communicated on 26-5-1994 whereas in subsequent explanations as well as in the affidavits they have admitted that they have received it on 19-4-1994. This also show the conduct of the authorities themselves. He also drew our attention to the copy of the impugned order-in-appeal which has been filed along with the appeal to show that on receipt of the impugned order-in-appeal in the Collectorate concerned it was sent to the Review Cell (RRA) as per the endorsement appearing on the said copy of the order-in-appeal and if it is so the very fact that it was not sent to the Appraising Group knocks down the bottom of the contention of the Department that top roof of the Appraising Group Section collapsed under which the record was buried.
3. Considered. Under Sub-section (3) of Section 129A of the Customs Act, 1962 the appeal is required to be filed within a period of 3 months from the date of communication of the impugned order and under Sub-section. (5) of the said Section power has been given to the Tribunal to admit the appeal after the expiry of the said period of limitation if it is satisfied that there was sufficient cause for not presenting it within that period. In the instant case it is not in dispute that the impugned order-in-appeal was received on 19-5-1994 and, therefore, the appeal should have been filed on or before 19-8-1994. In the instant case the appeal was received in the Registry on 10-2-1995. Thus, there was a delay of about 175 days. In the application in hand for condonation of delay the only reason for condonation of delay in not filing the appeal in time was that "but due to some mistake copy of order was sent to Appraising Group in place of sending it to Review Cell of the Customs House, therefore, it was not put up to me for orders for filing an appeal. My order was obtained on 3-2-1995 for filing an appeal against the order. Therefore, there is sufficient reason not to file the appeal in time." Besides, it was also stated that delay be condoned as the amount involved is very big. This application was taken up for hearing on 29-3-1995 when realising that the delay has not been properly explained in the application, Ld. JDR requested for time to enable him to get detailed date chart in support of the application for condonation of delay. Thereafter, affidavit in support of the said application was filed on 27-6-1995 wherein the Additional Collector of Customs for the first time stated that on or about middle of June, 1994 the top roof of the Appraising Group Section collapsed due to heavy monsoon and consequently, several documents in this Section were buried under the debris. The collapse of the roof was inspected by the CPWD. It took around month to clear the debris and documents buried, were also retrieved. However, during the clearance of said debris several documents were intermingled and it took substantial period to put all the documents in the proper order. During the said operation, the impugned order was also misplaced and after locating the order in assessment, the order for filing the appeal was obtained 0113-2-1995. Since the fact of alleged collapse of top roof of Appraising Section was not acceptable to the other side time was given to the Department to put the relevant correspondence in this regard.
Thereafter, a letter dated 20-4-1995 of the Junior Engineer addressed to the Assistant Collector (P), New Kandla was placed on record to show that the repair work could not be done immediately on account of non-availability of the staff. Today, the Ld. SDR, Shri Sachdeva, produced the letter dated 8-1-1996 addressed by the Commissioner of Customs, Kandla to the Joint CDR admitting that the extent of the damage was of small quantum and further admitted that the impugned order-in-appeal was received on 19-5-1994 and the endorsements appearing thereon are correct. If we go by the endorsement made in the impugned order-in-appeal it is found that the impugned order was sent to the RRA (Review Cell) and not to the Appraising Group Section and, therefore, Ld. counsel was right, even though it may be assumed for the sake of arguments that there was a collapse of the top roof of the Appraising Group Section there was no question of the present order-in-appeal being buried. From the record we further find that the extent of damage was of small quantum. It is beyond our comprehension as to how the record was buried and even how such long time was taken to retrieve the same. Besides, from the time chart as stated above, Revenue has not explained the day-to-day delay but have made an attempt to explain the delay in a vague manner by saying that there was a heavy rain in the region; that the CPWD was informed in July, 1994; that debris were cleared in, Mid July, 1994; that documents which were buried and subsequently recovered and file was properly constructed during Mid July, 1994 to January, 1995, - a long period and that the order for filing the appeal was obtained on 3-2-1995. It is significant to state that it was not explained to us as to when the file was retrieved during the alleged period of Mid July, 1994 to January, 1995 and when the file was put up for obtaining the order of the Collector (Appeals). Thus, taking all the facts and circumstances of the case as mentioned above, we are not satisfied that there was sufficient cause for not filing the appeal in time. Accordingly, we reject the application for condonation of delay bearing No. C/COD/32/95-D and so the Appeal No. C/97/95-D. The other appeal bearing No. C/237/95-D with COD Application No. C/COD/109/95-D has been filed as a supplementary appeal as two adjudication orders were disposed of by the Collector of Appeals vide his common order-in-appeal.
4. In the COD Application No. 109/95-D somewhat similar grounds have been stated for the condonation of delay and same arguments were advanced. Since we have held as above that the main appeal that is to say appeal initially filed was itself not in time and there was no sufficient cause for condonation of delay was reject this application for condonation of delay also and consequently the Appeal No.C/237/95-D as time-barred.