S.D. Jha, Member (J)

1. This order will dispose of the appellants.-applicant (hereinafter called applicant) application under subsection (5) of Section 129-A of the Customs Act, 1962 for condonation of delay in filing appeal after expiry of the time-limit fixed under Sub-section (3) ibid.

2. The order dated 22-2-1982 passed by Collector of Customs (Appeals), Madras challenged before the Tribunal through appeal in respect of which the present application for condonation of delay is filed, was communicated to the applicant on 31-8-1982. Under Sub-section (3) of Section 129-A of the Act an appeal has to be filed within three months from the date on which the order appealed against is communicated. Thus under this provision the applicant, should have filed the appeal by 30-11-1982, The applicant, however, filed appeal to the Tribunal on 29-11-1983.

3. The application does not specifically state when the time-'limit for filing the appeal expired though in Para 3 of the application, there is a reference to a recital in the printed preamble of the order that Revision Application against the order could be presented to the Additional Secretary, Ministry of Finance, Department of Revenue, New Delhi within six months from the date of communication of the order. The application does not state as to what exactly is the delay in filing appeal. This statement has particularly become necessary in view of the arguments advanced by the parties referred to later.

4. In the application, the grounds urged for condonation of delay mainly are that Shri Kartik M. Patel, who is the Managing Partner of the applicant firm, was ailing from chronic stomach disorder which could not be cured by allopathic treatment and the ailment resulted in necessity of prolonged bed rest and unani treatment. This treatment lasted till November, 1983. Thereafter, the applicant claims to have preferred (presumably means drafted) a Revision Application to the Government of India but before the same could be submitted, the applicant came to know of the Constitution of Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and the necessity of filing of appeal before this body. The applicant was not aware of the new procedure and after consulting a practising consultant at Madras, filed appeal before the Tribunal on 29-11-1983. The applicant claims that delay in filing the appeal was due to the circumstances aforesaid and request for condonation of delay.

5. At the hearing of the application, Shri B.B. Gujral, Advocate represented the applicant and S/Shri S. Chatterji and V. Lakshmi Kumaran, Departmental Representatives, the respondent non-applicant. By this time Shri Kartik M. Patel, Managing Partner of the applicant had also filed an affidavit dated 20-2-1985 in support of the application alongwith a medical certificate dated 29-11-1983 issued by one Dr. S.R. Balasubrahmanyan, Mina Nursing Home, Guindy, Madras. This certificate certifies that Shri Kartik M. Patel had been suffering from hypertension with angina and complete bed rest was advised from August, 1982 to November, 1983 for restoration of his health. During arguments, Shri Gujral learned Advocate for the applicant submitted that the applicant in view of the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982, could file appeal within six months from the date of communication of the order. Thus, the applicant could file appeal till 28-2-1983. The delay in filing any appeal should be computed from 1-3-1983 till 28-11-1983. Shri Gujral argued that delay on part of the applicant in filing the appeal was due to the fact that Kartik M. Patel was the Managing Partner of the applicant and he alone was responsible for looking after litigation. The other partner based in Bombay, was a sleeping partner. For finding out whether there was sufficient cause for not presenting the appeal within the stipulated period under subsection (5) of Section 129 of the Act, he submitted, it had to be se