' Instant Customs Appeal has been filed against the impugned order dated 14.3.2001 passed by the Customs Excise and Sales Tax Appellate Tribunal, Karachi Bench, whereby, the appeal filed by the appellant against the order of Collector (Appeals) was dismissed and the order of adjudication was upheld. However, perusal of record shows that while presenting instant appeal, the appellant, instead of filing certified true copy of the impugned order of the appellate tribunal, has attached an attested copy of the tribunal's order along with memo of appeal, which is available at pages 17- 19 of the instant file.
2. An objection was raised by the office with regard to maintainability of instant appeal on the point of limitation, in response to which, the learned counsel for the appellant made an endorsement on the objection sheet on 02.6.2001 to the effect that "impugned order was received on 02.04.2001 and appeal was filed on 02.5.2001, therefore, the appeal is within time." Attention of the learned counsel for the appellant was drawn to the copy of the impugned order passed by the Appellate Tribunal on 14.3.2001, annexed with memo of appeal in the instant case, which reflects that it is not a certified true copy of the order, on the contrary, it is attested copy which was obtained by the appellant on 30.3.2001 as reflected from the seal of the Appellate Tribunal affixed on the second page of the impugned order. It has been further observed that the appellant initially presented the amended memo. Of appeal on 21.01.2002, however, without filing proper application for amendment or even seeking permission of the Court in this regard, thereafter, another final amended title/memo. Of appeal was presented on 03.5.2002. It has been further noted that on 23.11.2001, when the matter was taken up for hearing in Court, learned counsel for the appellant undertook to provide proper documents and to file proper application for amending the appeal.
However, record shows that needful was not done, whereas, on consecutive four dates of hearing i,e, 23.1.2002, 20.2.2004, 26.3.2002 and 17.4.2002, the counsel for the appellant requested for further time to comply with the undertaking as referred to herein above, but needful has not been done so far, which shows that, instant appeal, otherwise has not been competently filed and the same cannot be treated as complete as prescribed by law. If the limitation is counted from the date of impugned order i,e, 14.03.2001 then, instant appeal, which was duly amended and thereafter presented on 21.1.2002, the same is barred by (6) months (excluding 90 days provided under the Statute to file appeal before High Court), whereas, if such limitation is counted from the date of 2nd amended appeal/ title i,e, 03.5.2002, then it is barred by (11) months (excluding 90 days provided under the statute to file appeal before High Court). Admittedly, no application seeking condonation of delay and explaining the reasons for filing instant appeal after expiry of the statutory period of ninety days has been filed by the appellant, nor the requisite documents as per undertaking of the learned counsel for the appellant have been placed on record.
3. We have also observed that the copies of the order of Collector (Appeals) as well as the order of adjudication and other documents attached with the memo. Of appeal are also not the certified true copies of such orders, whereas, the appellant has obtained the attested true copies of such orders at a belated stage, however, most of the copies are not even readable. It has been further noted that instant appeal was never fixed in Court for examining the maintainability of appeal on the point of limitation, therefore, instead of deciding the objection regarding limitation first, instant appeal was admitted to regular .Hearing vide Order dated 18.9.2002. Thereafter, Notice was issued to the respondents, pursuant to which Ms. Masooda Siraj, Advocate has shown appearance on behalf of the respondents and has raised an objection as to maintainability of instant appeal, for being time barred. It has been further contended that instant appeal is otherwise not maintainable as there is concurrent finding of two appellate forums on the facts of instant case, hence, the appeal liable to be dismissed in limine.
4. We are of the opinion that the maintainability of an appeal is to be examined first by the Court, instead of referring to the merits of the case, whereas, in the instant case, admittedly, appeal has been filed after expiry of Ninety days as provided under the Customs Act, 1969 for filing an appeal against the order of appellate tribunal. No explanation, whatsoever, has been given by the learned counsel for the appellant for the delay, which has occurred in filing instant appeal. Learned counsel for the appellant was confronted to satisfy this Court on the point of limitation, whereas, the file of the Court was given to both the learned counsel, for verification of above facts, whereafter, learned counsel for appellant candidly conceded that the appeal is time barred, however, argued that let instant appeal may be decided on merits, instead of being dismissed on technical ground of limitation.
5. Accordingly, we are of the opinion that instant appeal is barred by limitation, whereas no explanation for the delay occurred in filing the appeal has been given, nor any application seeking condonation of delay has been filed. We may observe that after expiry of period of limitation provided under the relevant statute, a substantial legal right accrues in favour of succeeding party which cannot be taken away in a casual manner, unless there is some plausible explanation and evidence explaining the delay of each and every day is given by the appellant. In the instant case, no plausible explanation, whatsoever, has been offered by the learned counsel for appellant, which may require this Court to condone the inordinate delay of more than (10) months. Reliance can be placed on a reported Judgment of this Court in the case of Collector of A Customs v. Shander Vankovani 2016 PTD 55 as well as on a recent unreported decision dated 16.9.2016 passed by this bench in the case of Sp. Customs Ref. No,367/2016 Messrs Pakistan Soap Manufacturers v. Custom Appellate Tribunal.
' In view of herein above facts and circumstances of instant case, we are of the opinion that instant appeal was neither properly presented, nor it has been filed within statutory period, hence, the same is hopelessly time barred, which is hereby dismissed on the point of limitation.