By TIOL News Service

KOLKATA, APR 19, 2016: THE petitioner had preferred an appeal against an order dated July 14, 1987 in 2002. Such appeal was rejected by the Commissioner (A) by order dated June 21, 2002. Against the rejection, the appellate tribunal was moved resulting in the impugned order dated June 10, 2004 wherein the Tribunal refused to entertain the appeal.

The petitioner is now before the Calcutta High Court and submits that the original order is a nullity as the same was passed in breach of the principles of natural justice. That they had requested time by writing a letter dated July 13, 1987; without informing the petitioner as to the result of such request the order dated July 14, 1987 was passed and it was communicated subsequently in 2002. Immediately thereafter, an appeal was preferred. Since the original order was passed in breach of the principles of natural justice it is a nullity;the decision in 1986 (23) E.L.T 14 (Cal) (Rungta Sons (P) Ltd.) is relied upon . It is also submitted that the claim for service of the original notice cannot be accepted in absence of actual proof of delivery. [ Neha Cosmetics Versus Commissioner = 2007-TIOL-82-HC-DEL-CX refers.]

The High Court observed -

+ The appellate tribunal has dismissed the appeal of the petitioner primarily on two counts. The first ground being the fact that the petitioner was served with the original order dated July 14, 1987. The appellate tribunal found that the same was sought to be sent under registered post with acknowledgment due card at the registered address of the petitioner. The second ground being the conduct of the petitioner in appearing before the authorities on July 13, 1987 and thereafter not taking any steps with regard to the proceedings till 2002.

+ So far as the second ground is concerned, no material has been placed on record at the behest of the petitioner to suggest that the petitioner had taken any steps with regard to the adjudicatory proceedings from July 13, 1987 till 2002. This conduct of the petitioner cannot be said to be prudent . The petitioner cannot be allowed to take advantage of such a conduct. Essentially, the petitioner is seeking to take advantage of its negligence in not keeping itself abreast with the developments of the adjudicatory proceedings.

+ On the first ground, it has been contented that without an actual proof of service, the petitioner cannot be said to have been served with the original order dated July 14, 1987 in spite of the fact that the same was sent by registered post with acknowledgment due card.

+ The petitioner had approached the Commissioner (Appeals) after 14 years from the date of the original order dated July 14, 1987. It is for the petitioner to establish that, inspite of all reasonable steps being taken on behalf of the petitioner the order dated July 14, 1987 was not made available to it. It has failed to discharge such onus. The onus to prove delivery of the order dated July 14, 1987 has not shifted to the authorities, in the facts of this case. To allow the petitioner to have an appeal heard on the ground of laches actual proof of delivery more particularly given the conduct of the petitioner as noted above, would be miscarriage of justice.

+ In the present case, the original order dated July 14, 1987 cannot be said to be vitiated by the principles of natural justice. The petitioner was aware of the proceedings. It chose not to appear thereon. It chose to issue a letter dated July 13, 1987 and thereafter did not follow it up or kept itself abreast with the developments or the progress of the adjudicatory proceedings. A prudent person acting reasonably is expected to keep a track of the proceedings.

The case laws cited were distinguished.

Holding that there is no merit in the writ petition, the same was dismissed.

(See 2016-TIOL-787-HC-KOL-CUS)