ORDER
S. Kalyanam, Member (J)
1. On going through the records we find that the above appeals have been filed by the Department against the order of the Collector of Customs & Central Excise (Appeals), Madras dated 20-3-1988, on 3-11-1989. When the appeals were taken up for hearing on 5-11-1990, Shri Suganchand Jain, Advocate for the Respondents took a preliminary objection that the appeals have been filed after a delay of 400 days and the Department has not taken out any application for condonation of delay. When the matter came up on 5-11-1990 the learned D.R. for the Department submitted that the Respondents herein sent by Registered post copy of the impugned order on 15-3-1989 which was received by the Department on 20-3-1989 and it is only thereafter the Collector of Customs applied for a copy on 3-7-1989 and got the same on 24-8-1989. It was in this context that the Department sought for an adjournment to produce relevant Register. We also note that under Column No. 3 of the appeal petition the date of communication of the order has been shown as 21-8-1989 and the same is mentioned in the grounds of appeal also. The main contention of the D.R. was that time would start running from the date of receipt of the impugned order under Section 129A (3) of the Customs Act, the Act for short. Today Shri J.M. Jeyaseelan, the learned D.R. submits that the impugned order copy was sent by the Collector (Appeals) only by ordinary post and not by Registered post, even though incorrectly it is stated in the impugned order that the impugned order was sent by Registered post. The learned D.R. therefore submits that there is no delay.
2. The learned Counsel for the Respondents was heard during the last hearing and he had submitted that he does not have any more submissions to make.
3. We have gone through the entire records and also gone through the despatch Register maintained in the office of the Collector (Appeals). We find that copy of the order has been sent not only to the Additional Collector of Customs, Madras, but also the Collector of Customs, Madras by Registered post. We also find that copy of the order has been sent to Shri L.S. Jain, the Advocate for the Respondents by Registered post Acknowledgement due. The endorsement in the Register of despatch clearly shows that the copy of the order has been sent by Registered post. Now the Ld. D.R. submits before us that the impugned order copy was sent under ordinary post. If it was by hand delivery it should have been indicated as such. In any case in support of the plea of the DR that the impugned order copy was sent by ordinary post, or despatched by hand delivery, no evidence has been produced. On the contrary, in the Register regularly maintained during the course of the business in the office of the Collector (Appeals), relating to despatch, endorsements have been clearly made referring to the impugned order being sent by Registered post to the Additional Collector of Customs, Madras, Collector of Customs, Madras. There is no evidence to show that the Additional Collector of Customs, Madras did not receive the order copy. Therefore, in the face of the clinching documentary evidence, the plea of the learned DR that copy of the order was sent by ordinary post, is not acceptable. We take note of the fact that in law once a communication is sent by Registered post, there is a presumption though rebuttable one, that the same reached the addressee. We do not see any acceptable evidence by way of rebuttal that the impugned order copy was not received by the Collector of Customs, Madras. We further note that the Respondents had only filed appeals under the Gold (Control) Act, 1968 as the cause title in the impugned order would read “Order-in-Appeal No. 83 & 84/88 (M) G.C.”. We further note that in the absence of any appeal under the Customs Act, 1962, the Collector (Appeals), proceeded to give his findings tinder the said Act. We also note that in respect of the finding of the Additional Collector of Customs, under the Customs Act, 1962 against the Respondents, in the impugned order, the Respondents filed Appeal No. C/4/87 & C/5/87 before the Tribunal and the Tribunal disposed of the appeals by its Order No. 148/87 dated 27-2-1987. Therefore, in the facts and circumstances of the case, we hold that the appeals filed by the Deptt. are not maintainable in the absence of any application for condonation of delay and even if the appeal is taken as application for condonation of delay, we do not find proper, valid or sufficient reason for condoning the long delay of 400 days in the presentation of the appeal. The appeals are therefore dismissed.
V.P. Gulati, Member (T)
4. I agree. I would however, like to observe that unnecessary confusion has been created by the Collector (Appeals) in dealing with the confiscation made under the Customs Act, 1962, when the appeals filed by the Respondent was only under the Gold (Control) Act, 1968. The Collector (Appeals) has clearly exceeded his jurisdiction while passing his order. The Tribunal as mentioned above had confirmed the finding of the Additional Collector, by its order No. 148/87 dated 27-2-1987. On that day the matter acquired finality and there was no reason for the Collector (Appeals) to have dealt with the Customs aspect of the matter and his order in this regard is ab initio void.