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2016 (2) TMI 946 - AT - CustomsCondonation of delay - service of SCN - Held that - the Show Cause notice dated 5.4.2001, or the personal hearing intimations the impugned Order-in-Original Ct. 31.1.2002 could not be served or brought to the knowledge of the Appellant despite efforts made by the department. It is also a matter of record that the department found that the appellant and his son had left the premises mentioned in the Show Cause Notice or the Order- in-Original and thus the same could not be served by any regular mode. It is also borne out from records before us that the appellant was abroad in the entire period from issuance of show cause notice till passing of the impugned Order - reliance placed on the decision of the case Navbharat Enterprises Ltd vs CC (Import) 2015 (3) TMI 27 - BOMBAY HIGH COURT where it was held that if there was doubt and which could be inferred from the records and information provided to the Assessee by the Revenue after he invoked the Right to Information Act 2005 then, the Tribunal should have condoned the delay and in all fairness and in the interest of justice. Eventually if the Assessee cannot be faulted or being negligent or reckless in pursuing the remedy, then, the delay could have been condoned by compensation of payment of costs. Condonation of delay allowed subject to payment of cost of ₹ 5,000/- - appeal allowed - decided in favor of appellant.
Issues involved:
Delay in filing appeal against penalty imposition. Analysis: The case involved an application for condonation of delay in filing an appeal against the penalty imposed on the appellant. The appeal was filed on 8.03.2013 against the Order-in-Original dated 31.1.2002. It was undisputed that the appellant was abroad during the entire period from the issuance of the show cause notice until the passing of the impugned Order, as evidenced by his passport issued in London on 2.4.2001. The department's efforts to serve the notice were unsuccessful as the appellant and his son had left the premises mentioned in the notice. The appellant, upon learning about the penalty imposition through his son, promptly filed the appeal along with necessary applications. The appellant's counsel referred to previous judgments and argued that the delay should be condoned as the appellant was unaware of the order against him. The counsel also highlighted that the department failed to provide evidence of service or display of the notice and order. The appellant sought to rely on precedents where delays were condoned in similar situations. The department initially opposed the application for condonation of delay, citing the dismissal of the appeal filed by the appellant's son on similar grounds. However, considering the circumstances presented, the department suggested imposing costs if the delay were to be condoned. The Tribunal carefully reviewed the records and submissions. It was noted that despite efforts made by the department, the appellant and his son could not be served with the notice or order due to their absence from the mentioned premises. Discrepancies were found in the department's report regarding the service and display of the order. The Tribunal acknowledged the differences in the appellant's case compared to his son's case and agreed to grant an opportunity for the appellant to present his appeal, subject to the payment of costs. The decision was influenced by a previous judgment by the Hon'ble Bombay High Court, emphasizing fairness and the interest of justice in condoning delays under specific circumstances. In conclusion, the application for condonation of delay was allowed, contingent upon the payment of a cost of Rs. 5,000 to be made within a specified timeframe.
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