ORDER
S.L. Peeran, Member (J)
1. The above application for condonation of delay is taken up for consideration. The appellants filed this appeal before the Tribunal on 1-11-99 against Order-in-Appeal No. 512/98 (M-III), dated 28-12-98. In Form E.A.3, the Column No. 3 requires the appellants to inform the date of communication of the copy of the order appealed against. Appellants have not given the date on which they received the Order-in-Appeal No. 512/98, dated 28-12-98. In the application dated 30-10-99 for COD, appellants have stated that subsequent to the personal hearing, the appellants were awaiting the order of Commissioner (Appeals). However, to their surprise, they received a letter dated 7-9-99 from the Superintendent proposing to recover the amounts involved in the appeal on the ground that appeal was rejected by the Commissioner (Appeals) vide order dated 28-12-98. In the affidavit, they contend that did not receive the order at all and in the absence of the copy of the order, they could not file the appeal in time before the Tribunal. Only after the intimation by the Superintendent, they have filed the present appeal within three months which is in order and there is no delay on their part. In view of the submission made by the appellants, the Tribunal on 12-1-2000 by note order informed the Revenue to file their report to note the date of despatch of the Order-in-Appeal and proof of despatch. The matter was adjourned from time to time. Ultimately, the Revenue was able to produce the records. The extract of the records would show that the order had been despatched on 7-1-99 along with appellants’ order, 23 other orders were despatched on the same day and the name of the appellants occurs in Sl. No. 11. Totally 23 covers were despatched and the postal authorities have affixed their seal on the Despatch Register for having received the covers for delivery. Appellants were given an opportunity by the Bench to counter the Revenue’s records to show that the order had been despatched to them on 7-1-99 and that there was a delay on their part. The ld. DR had produced these records on 12-7-2000. The matter was adjourned to 10-8-2000 for the appellants to file their counter affidavit and rebut the evidence. On 10-8-2000, Counsel took time to file counter affidavit and the matter was adjourned to 5-9-2000 on which date again the Counsel took time and it was adjourned to 14-9-2000, 19-9-2000 and 20-9-2000. The matter was adjourned as a last chance to 19-10-2000. On 19-10-2000, again the Counsel took time to counter the evidence shown by Revenue. The matter was again adjourned to 16-11-2000. Again on 16th Nov., 2000, the Counsel sought adjournment and the case was adjourned to 11-12-2000. From 11-12-2000, the matter was adjourned to 18-1-2001. On 18-1-2001, the Counsel filed a letter addressed to the Post Master, Chennai-20 seeking clarification regarding the service of department’s communication and sought time to get report from the post office. The matter was adjourned to 22-2-2001. From 22-2-2001, the case was adjourned to 12-3-2001. From 12-3-2001, the matter has come up today. Today, the Counsel files a letter from the Senior Superintendent of Post Office, Madras City South Division dated 24-1-2001. The letter reads as under :-
“Sub : Delivery of regd. letter sent by Central Excise Dept, Ch-34 during January’ 99 – reg.
Ref: Your letter dated 20-1-2001.
Sir,
“It is intimated that in the absence of Regd./Speed Post letter number, date and office of booking, your compliant regarding non-delivery cannot be processed further. Moreover, the preservation period of the documents is already expired.”
2. The ld. Counsel submits that mere despatch of the order by the department will not prove the service as held by the Madras High Court in the case of Thangamma Chacko and Ors. v. CEGAT reported in 1993 (41) ECC (1). He submits that the date has to be reckoned only from the date of Superintendent of Central Excise letter dated 7-9-99 and if this date is taken, then there is no delay.
3. The ld. DR submits that there is enormous delay of more than 207 days. He points out that they have already produced the records to show that the order had been despatched and the same has not come back undelivered to the department and in terms of General Clauses Act, the letter is deemed to have been served on the appellants. He submits that on the same date, 26 covers were despatched to various other parties and none of them has complained, of non-receipt. He points out that the judgment cited is clearly distinguishable as in that case, the Tribunal had not given any findings and dismissed the application without findings. While in the present case, enormous opportunities have been given to the appellants to rebut the departmental evidence. The party has not taken any steps to approach the post office till 24-1-2001 on which date, the Senior Superintendent of Post Office had informed them that “the preservation period of document is already expired”. He submits that the latches is patent on record. The party has not even cared to comply with the Bench direction to get the report from the post office after the department filed their documents on 12-7-2000. Therefore, the delay being enormous, the application should not be accepted.
4. On careful consideration of the submissions, we notice that the judgment of Madras High Court cited by the Counsel is clearly distinguishable. In that case, the Tribunal had dismissed the application without recording any finding on the date of communication of the impugned order. In the present case, the Revenue has produced the despatch register to show that the order was despatched on 7-1-99 along with 22 orders which were also delivered on the same day. Appellants cover and that of other covers sent on that date had not reached ‘undelivered’. The presumption clearly arises when the Registered Post sent by the department has been delivered. The appellants had been given an opportunity to produce the certificate from the concerned post office to show that the registered letter sent by the Excise Department Chennai-34 during Jan’ 99 was not delivered to them. Appellants have not utilized the opportunity and have not approached the post office within this time-limit. They have kept on taking adjournment from time to time before the Tribunal instead of approaching the concerned post office to get an endorsement. Ultimately, the post office have stated that the appellants have approached ‘beyond the preservation period of documents’ and in the circumstances, they could not certify about its delivery. Appellants have by their conduct shown negligence both before the Tribunal as well as before the Commissioner inasmuch as they ought to have known from the Commissioner the result of their appeal after having argued the matter. The appellants have not proved that they have not received the cover despatched by the department. The latch is clear on record which does not call for taking a lenient view for condoning the delay. The reason given is not sufficient. As such, the COD application is rejected. In view of rejection of the application on limitation, the appeal along with the stay application gets dismissed as time-barred.