2013 (12) TMI 1300 - AT - Customs

Condonation of delay - Delay of 1234 days - Non delivery of order - Held that - Merely explaining the revision remedy was sought, appellant is not absolved of its obligation to adhere to the limitation prescribed by law. Laxity does not add to longevity to a remedy which exhaust with the passage of time following doctrine of resjudicate. Casual approach of appellant shows its scanty regard to law. Had there been bonofide, the appellant would have pursued its right with the Previsional Authority. But that has also not come to record. No vigilant attitude of appellant is visible from record. Length of deliberate delay cripples a litigant to be successful applicant without a bonafide cause. Painting a gloomy picture, a litigant causes prejudice to other side and that is one of the ways of abuse of process of law. When a litigant prefers to postpone his remedial measure without being vigilant and unmindful of the consequence of delay and neither before limitation nor after that, he is conscious of his right of remedy within limitation, he forgoes his remedy with the lapse of time. An indolent without being vigilant, losses his right. A man of prudence and diligence does not prefer to prejudice his interest seeking remedy of appeal belatedly. While a vigilant only gets leniency for condonation of delay, an indolent fails to get such consideration - there is no ground in condonation of delay that too a length of 1234 days in absence of bonafide - Condonation denied.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Jurisdiction and maintainability of the revision applications.
3. Bona fide prosecution before the wrong forum.
4. Application of Section 14 of the Limitation Act.
5. Conduct and intentions of the appellant.
6. Precedents and principles for condonation of delay.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The applicant filed an application for condonation of delay of 1236 days in filing the appeal. The delay was attributed to the applicant's belief that the revision applications were the correct legal remedy, which were filed within the limitation period but were later dismissed as beyond jurisdiction. The applicant argued that the delay was neither intentional nor willful but due to reasons beyond their control and in good faith. They relied on the Supreme Court decision in Collector, Land Acquisition, Anantnag vs. Ms. Katiji, which advocated a liberal approach for condonation of delay.

2. Jurisdiction and Maintainability of the Revision Applications:
The Customs department issued a show cause notice, and the Adjudicating Authority confirmed the notice. The applicant, along with others, filed revision applications before the Joint Secretary, which were provisionally accepted but later dismissed without a hearing on the grounds of being beyond jurisdiction. The dismissal order was not communicated to the applicant or the Customs department until much later, leading to a significant delay in filing the appeal before the Tribunal.

3. Bona Fide Prosecution Before the Wrong Forum:
The applicant contended that they acted in good faith by filing the revision applications, believing it to be the correct forum. The Customs department's inquiry about the status of the revision applications indicated that even the department was unaware of the jurisdictional error. The applicant argued that the delay was due to a bona fide mistake and not due to negligence or malafide intent.

4. Application of Section 14 of the Limitation Act:
The applicant invoked Section 14 of the Limitation Act, which allows exclusion of time spent in bona fide prosecution before a wrong forum. They argued that the time spent pursuing the revision applications should be excluded from the limitation period for filing the appeal. The Tribunal considered whether the applicant's actions constituted bona fide prosecution and whether the delay could be condoned under this provision.

5. Conduct and Intentions of the Appellant:
The Revenue opposed the condonation, arguing that the applicant's actions lacked good faith and were an abuse of the process of law. They cited the Supreme Court decision in Ketan V. Parekh, which emphasized that the benefit of Section 14 could not be extended to parties acting in bad faith or engaging in forum shopping. The Tribunal examined the applicant's conduct, including their knowledge of the correct forum and their previous legal experiences.

6. Precedents and Principles for Condonation of Delay:
The Tribunal referred to several precedents, including the Supreme Court's decision in Collector, Land Acquisition, Anantnag, which advocated a liberal approach to condonation of delay to serve the ends of justice. The Tribunal also considered other cases where delays were condoned due to bona fide prosecution before the wrong forum. The majority opinion emphasized the need for a justice-oriented approach and the importance of substantial justice over technical considerations.

Separate Judgments:

Majority Opinion:
The majority opinion, delivered by Manmohan Singh, rejected the application for condonation of delay. The opinion emphasized that the applicant was aware of the correct forum and that their actions lacked good faith. The majority found that the applicant's conduct indicated an abuse of the process of law and that the delay was not justifiable. The appeal and stay applications were consequently dismissed.

Dissenting Opinion:
Archana Wadhwa, in her dissenting opinion, disagreed with the majority. She argued that the delay should be condoned as the applicant acted in good faith and the delay was due to a bona fide mistake. She emphasized the principles laid down by the Supreme Court in Collector, Land Acquisition, Anantnag, and other precedents that advocated a liberal approach to condonation of delay. Wadhwa concluded that the applicant's actions did not reflect malafide intent and that the delay should be condoned to allow the appeal to be heard on merits.

Conclusion:
The Tribunal was divided on the issue of condonation of delay. The majority opinion rejected the application, while the dissenting opinion supported condonation. The matter was referred for resolution of the difference of opinion regarding the condonation of delay.

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