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Condonation of delay - If order is served on member of family, it is duly served - No error in order of Tribunal dismissing appeal on ground of delay: HC

By TIOL News Service

ALLAHABAD, JAN 12, 2016: AGAINST the order in original dated 19.5.2008, the appeal was filed by the appellant on 30.10.2010. Since there was a considerable delay in filing the appeal, the Tribunal by the impugned order rejected the appeal as being barred by time. The appellant, being aggrieved, has filed an appeal before the High Court contending that in the facts and circumstances the delay, if any, was liable to be condoned and that the Tribunal ought to have heard the appeal on merits.

The Department contended that the order in original was served on 18.6.2008 to one Virendra Yadav at the residential premises of the appellant who represented himself to be the nephew. The Tribunal held that there was sufficient service of the order in original and, therefore, dismissed the appeal as barred by limitation.

Accordingly to the appellant, the order in original is required to be served to the person for whom it is intended, namely, the appellant or its authorised agent. There was no proper service of the impugned order since Virendra Yadav was neither the authorised representative nor the order was served upon the appellant and, consequently, there was no proper service and they filed appeal only after a copy of the Order-in-Original was made available on 30.10.2010

After hearing both sides, the High Court held:

+ If the order is served on a member of the family, it is duly served and there is sufficient service. No assertion was made by the appellant before the Tribunal that the service made upon Virendra Yadav was not a family member or that he was not connected with the business. Even before this Court, the appellant has no where stated that Virendra Yadav is not her nephew. Making the assertion at this stage that he was not connected with the business is irrelevant. Further, nothing has been stated that the address where the service of the original order was made was incorrect.

+ The order in original was duly served upon the appellant on 18.6.2008. The appeal was filed belatedly before the Tribunal, which was rightly dismissed on the ground of limitation.

(See 2016-TIOL-67-HC-ALL-CX)


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