2014 (1) TMI 11 - HC - Customs

Condonation of delay - Delay in receipt of order - Change of address - Held that - appeal was filed on 27-4-2010, almost one year from the date of service of the order and the ground for condonation of delay was that the office at Panchkula had been taken over by the Bank in the year 2006 and, therefore, the petitioner did not get the order-in-original sent at that address. It was only when the recovery proceedings were initiated, that he came to know and got the copies of the orders on 26-2-2010 - petitioner had shown sufficient cause for condonation of delay. The petitioner had resigned in the year 2004 which has not been denied by respondent No. 2. The plea of the petitioner is that the notice was sent at Panchkula, which was taken over by the Bank, and therefore, he did not receive the order of the Commissioner merits acceptance. The Tribunal on the basis of a very techni-cal approach has dismissed the appeal on the ground of limitation - Tribunal was not right in declining the application for condonation of delay and the said order is legally not sustainable. Consequently, the order dated 30-6-2011 qua the petitioner is quashed and the plea of the petitioner regarding the condonation of delay is accepted and the delay in filing the appeal is condoned - Delay condoned.

Summary

Issues:
1. Application for condonation of delay in filing an appeal before the Customs, Excise & Service Tax Appellate Tribunal.
2. Justification of delay in filing the appeal.
3. Legal principles governing condonation of delay under Section 5 of the Limitation Act, 1963.
4. Comparison with previous judgments on condonation of delay by the Hon'ble Apex Court.
5. Direction to the Tribunal for hearing the appeal on merits.

Analysis:

1. The petitioner filed a writ petition under Article 226/227 of the Constitution of India seeking to quash the order dated 30-6-2011 by the Customs, Excise & Service Tax Appellate Tribunal, which dismissed the application for condonation of delay and consequently dismissed the appeal.

2. The petitioner, formerly associated with a company, resigned in 2004 and had no involvement in its affairs thereafter. Despite a show cause notice issued in 2007, the petitioner only received the order in 2010 due to the company's address being taken over by a bank. The Tribunal dismissed the appeal on grounds of limitation, citing a technical approach.

3. The High Court examined the record and found the petitioner had shown sufficient cause for condonation of delay. Referring to Section 5 of the Limitation Act, the Court emphasized the need for a liberal approach when sufficient cause is demonstrated. Citing previous judgments, the Court highlighted that technical considerations should not impede substantial justice.

4. The Court referenced judgments such as Collector, Land Acquisition, Anant Nag & Others v. MST Katiji and Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation to support the principle of liberal approach in condoning delays. It emphasized that delay should not lead to the dismissal of a case if there is no culpable negligence or mala fides.

5. The Court noted that another appeal related to the same order was pending and directed that the petitioner's appeal should also be heard on merits along with the connected appeal. Consequently, the Court quashed the Tribunal's order, accepted the petitioner's plea for condonation of delay, and instructed the Tribunal to decide the appeal on its merits in accordance with the law.