Customs, Excise and Gold Tribunal - Mumbai
Manoharlal G. Jewellers vs Gold Control Administrator on 2 February, 1988
Equivalent citations: 1988(35)ELT603(TRI-MUMBAI)
ORDER K. Gopal Hegde, Member (J)
1. This appeal arises out of and is directed against Order-in-Appeal bearing No.S/49-149/84 GC dated 21-3-1985 passed by the Collector of Customs (Appeals) Bombay.
2. The facts necessary for the disposal of this appeal are uncontroverted and they lie in a small compass. The Deputy Collector (Preventive) Gold Control, Bombay, ordered confiscation of gold and gold ornaments weighing 476.750 gms. but allowed redemption on payment of a fine of Rs. 10,000/-. He imposed a penalty of Rs. 1,000/- on the appellant.
3. Feeling aggrieved by the said order the appellant had preferred an appeal before the Collector of Customs (Appeals) Bombay. The Collector of Customs (Appeals) passed the following order:-
"The Order-in-Original in the present case was issued on 30-8-1984 which was received by the appellant on 3-9-1984. The appeal against the order was signed by the appellant on 1-12-1984 and has been received on 3-12-1984 in this office without indicating any grounds for the appellant's inability to present the appeal within three months. The appeal is, time-barred under Section 80 of the Gold (Control) Act, 1968 (as amended) and accordingly rejected."
4. Feeling aggrieved by the said order the appellant have preferred this appeal.
5. During the hearing of this appeal, Shri Shah submitted that the Collector (Appeals) was not correct in holding that the Order-in-Original was received by the appellant on 3-9-1984. It was actually received by them on 4-9-1984. Shri Shah, further, submitted that even assuming that the order was received on 3-9-1984 the appeal filed on 3-12-1984 was not barred by time since the date of receipt of the order is to be excluded and if so excluded, three months expires on 3-12-1984. On that day the appeal had been filed. He, therefore, prayed that the order of the Collector (Appeals) may be set aside and the matter may be remanded to the Collector (Appeals) for disposal on merits.
6. Shri Senthivel, however, urged that the impugned order of the Deputy Collector was issued on 30-8-1984 and, therefore, the appeal should have been filed within three months from that date. But then, admittedly the appeal was received in the office of the Collector (Appeals) on 3-12-1984 and the appellant had not given any reason for the delay and, therefore, the Collector (Appeals) was justified in rejecting the appeal as barred by time.
7. We have considered the submissions made on both the sides. Shri Shah produced a copy of the Memorandum of Appeal filed before the Collector (Appeals). In the said memorandum against the Column No.4, the appellant had mentioned the date of receipt of the impugned order and the date given was 4-9-1984. It is not clear how the Collector (Appeals) took the date of receipt as 3-9-1984. If there was any other material before the Collector (Appeals) having regard to the date mentioned by the appellant, an opportunity should have been given to the appellant so that he may clarify as to the date of receipt of the impugned order. No such opportunity was given.
8. Under Section 80 of the Gold Control Act, a person aggrieved was required to file the appeal to the Collector (Appeals) within three months from the date of the communication to him of the decision or order. Shri Senthivel's contention that the date of despatch is the date to be taken for reckoning the period of limitation for filing the appeal is not correct. Without knowing the nature of the order passed, nobody can 'file any appeal. Therefore, it is neither the date of the order nor the date of despatch which is relevant and the date relevant is the date of knowledge of the order. In the instant case the appellant has come to know of the order only on 4-9-1984. Therefore, the appeal filed on 3-12-1984 is within the period of limitation.
9. Assuming that the communication was on 3-9-1984 as has been stated by the Collector (Appeals) even then the appeal filed on 3-12-1984 is also within the period of limitation, since the actual date of receipt of the order is required to be excluded for the purpose of reckoning the period of limitation.
10. The Collector (Appeals), in our opinion, had committed an error in law in holding that the appeal filed by the present appellant was barred by time. We, therefore, allow this appeal, set aside the Collector (Appeals)' order and remand the matter to the Collector (Appeals) for consideration on merits.