2006 (7) TMI 496 - AT - Customs

Appeal - Limitation - Condonation of delay at the time of import of goods, the appellant s primary motive was to get the goods cleared from the Customs area, so as to avoid heavy demurrage and also to adhere to its delivery schedules the value of the software need not be included in the value of the hardware, even if such software is loaded/embedded to the hardware, was not at all within the knowledge of the appellant.

Summary

Issues:
Condonation of delay in filing the appeal.

Analysis:
The appellant sought condonation of a 299-day delay in filing the appeal against order-in-original No. 41/2004-Cus. The appellant initially decided not to appeal, as confirmed by the chairman in a letter to the Commissioner of customs. Reasons for the delay included avoiding demurrage costs, commercial reasons, and ignorance of legal principles. The appellant contended that the decision in Acer India case was unknown to them, impacting their appeal decision. They also argued that failure to appeal could affect their defense against a proposed duty of excise demand. The appellant highlighted that the duty demand and penalty were legally unsustainable. The appellant's counsel cited judgments where marginal delays were condoned.

Analysis Continued:
The appellant later attempted to justify the delay by submitting affidavits regarding the absence of a key company representative due to an accident. However, the Tribunal found the negligence in the delay to be clear and patent. The Tribunal noted that the appellant had initially chosen not to appeal, and later attempts to file the appeal were not sufficient grounds for condonation. The Tribunal referenced previous judgments dismissing delayed appeals due to apparent lapses. The appellant's attempt to shift blame onto the absent representative was deemed an afterthought. The Tribunal emphasized that subsequent favorable judgments for the appellant were not valid reasons for condoning the delay.

Analysis Continued:
The Tribunal concluded that the appellant's reasons for delay lacked merit, as the company was managed by other directors and the absence of one representative did not justify the delay. The Tribunal rejected the appellant's arguments, stating that the application for condonation of delay was based on negligence and lapse. Consequently, the application was rejected, and the appeal was dismissed.

Conclusion:
The Tribunal denied the condonation of delay in filing the appeal, emphasizing the clear negligence and lack of sufficient cause for the delay. The appellant's attempts to justify the delay were deemed insufficient, leading to the rejection of the application and the dismissal of the appeal.