2015 (2) TMI 30 - HC - Customs

Condonation of delay - Benefit of exemption under notification No.21/02 dated 1.3.02 - Held that - In order to test the bona fides of the appellant/importer and his sincerity in pursuing the matter, this Court called upon the appellant/importer to deposit an amount of ₹ 2 Lakhs as condition precedent to hear the appeal, which has been complied with by the appellant/importer and proof towards such deposit has also been produced before this Court. In such circumstances, this Court is inclined to proceed with the matter by examining the substantial issue relating to delay in filing the appeal and the explanation given thereof. The reason for non-appearance of the appellant/importer before the Tribunal has been explained stating that as the appellant/importer was on Haj pilgrimage in November, 2010, the affairs of the company was left at the hands of the staff, who had mismanaged the same and, therefore, the appellant/importer was in a quandary. On a perusal of the materials available on record, we find some justification in the explanation given by the appellant/importer, he being the sole proprietor. Further, the plea taken by the appellant/importer is acceptable for the reason that it is a case of proper import after assessment by an appropriate officer in the month of June, 2003 and, thereafter, investigation was mooted by the DRI, which culminated in the show cause notice in February, 2005. The appellant has been pursuing the matter from the stage of show cause notice, adjudication, appeal before the Commissioner, further appeal before the Commissioner (Appeals) and, thereafter, before the Tribunal in the first round. On remand by the Tribunal, the appellant/importer diligently pursued the matter before the Commissioner of Customs in the first de novo proceedings and once again on appeal to the Tribunal and subsequent remand order dated 20.10.09, pursued the matter sincerely in the 2nd de novo proceeding before the Commissioner of Customs. In view of the conduct of the appellant/importer in showing his bona fide by making the deposit as ordered by this Court reaffirming his sincerity in pursuing the matter, we find that his intention in pursuing the appeal is bona fide and the inaction that resulted in the delay, as attributed by the Tribunal to the appellant/importer, is only on account of the appellant/importer going on pilgrimage and, therefore, the inaction can be attributed only to the staff while the appellant/importer was away and the plea of mis-placement of the order, as pleaded by the appellant/importer is acceptable in the circumstances as aforementioned. In such view of the matter, this Court is of the considered view that the Tribunal should have taken a lenient view in condoning the delay. The dismissal of the appeal thereof, without considering the explanation offered by the appellant/importer, is erroneous and is liable to be set aside. - Matter remanded back - Delay condoned.

Summary

Issues Involved:
1. Refusal to entertain application for condonation of delay.
2. Construction of power under Section 129A(5) of the Customs Act.
3. Principles underlying condonation of delay under Section 129A(5) of the Customs Act versus Section 5 of the Limitation Act.
4. Absence of positive evidence for service of the impugned order.
5. Date of communication versus date of knowledge of the order under Section 129A(5) of the Customs Act.

Detailed Analysis:

1. Refusal to entertain application for condonation of delay:
The appellant/importer challenged the Tribunal's refusal to entertain the application for condonation of delay, arguing that the Tribunal had entertained an appeal against an identical common order and granted interim stay. The Court noted that the Tribunal dismissed the appeal on the grounds that other co-noticees had received the order and filed appeals on time, and that the appellant/importer did not pursue the matter properly during the second adjudication proceeding. The Court found justification in the appellant's explanation for the delay, attributing it to mismanagement by the staff while the appellant was on pilgrimage, and concluded that the Tribunal should have taken a lenient view in condoning the delay.

2. Construction of power under Section 129A(5) of the Customs Act:
The appellant/importer contended that the Tribunal erred in not liberally construing the power under Section 129A(5) in favor of the appellant. The Court emphasized that the Tribunal should have adopted a liberal, pragmatic, and justice-oriented approach while dealing with the application for condonation of delay, as enunciated by the Supreme Court in Esha Bhattacharjee v. Managing Committee of Raghunathpur, Nafar Academy and others. The Court concluded that the Tribunal's dismissal of the appeal without considering the explanation offered by the appellant was erroneous.

3. Principles underlying condonation of delay under Section 129A(5) of the Customs Act versus Section 5 of the Limitation Act:
The appellant/importer argued that the principles underlying condonation of delay under Section 129A(5) of the Customs Act are akin to the well-settled principles under Section 5 of the Limitation Act. The Court agreed, citing the Supreme Court's guidelines in Esha Bhattacharjee, which advocate for a liberal and justice-oriented approach in dealing with applications for condonation of delay. The Court found that the appellant's intention in pursuing the appeal was bona fide and that the delay was due to circumstances beyond the appellant's control.

4. Absence of positive evidence for service of the impugned order:
The appellant/importer argued that the Tribunal's findings were perverse due to the absence of positive evidence showing that the appellant was served with the copy of the impugned order. The Court noted the appellant's claim that there were no records in the office showing receipt of the original order in 2010 and accepted the explanation that the order might have been misplaced by the staff. The Court found the appellant's plea of misplacement of the order acceptable in the given circumstances.

5. Date of communication versus date of knowledge of the order under Section 129A(5) of the Customs Act:
The appellant/importer contended that the Tribunal erred in construing the date of communication of the order as the date of knowledge of the order for the purpose of Section 129A(5) of the Customs Act. The Court accepted the appellant's explanation that the delay was neither willful nor wanton but due to the appellant not having personal knowledge of the impugned order until January 2013. The Court concluded that the Tribunal should have considered the date of knowledge as the relevant date for calculating the delay.

Conclusion:
The Court allowed the appeal, set aside the Tribunal's order, and condoned the delay in filing the appeal before the Tribunal. The Tribunal was directed to take up the appeal along with the application for waiver of pre-deposit and consider the same on merits and in accordance with law. The Court also instructed the Tribunal to give credit to the deposit of Rs. 2 Lakhs already made by the appellant/importer.