2015 (3) TMI 27 - HC - Customs

Condonation of delay - Inordinate delay of 266 days in filing of the Appeal - Held that - Even the Tribunal, does not refer to the delay of more than 12 years and as claimed by the Revenue. It refers to the period of delay as of 266 days. That it relies on the fact that even after obtaining the information and receiving the copy of the adjudication order, the Assessee failed to file the Appeal in time. Thus, this delay has not been satisfactorily explained. - 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 for being negligent or reckless in pursuing the remedy, then, the delay could have been condoned by compensation of payment of costs. - The impugned order is quashed and set aside. The delay of 266 days is condoned in the peculiar facts and circumstances but by directing that the Appellant- Assessee before us, shall pay costs quantified at ₹ 25 ,000 /- within a period of four weeks from the receipt of copy of this order. If these costs are paid and the proof is produced, the Tribunal shall restore the Appeal, register it and hear and dispose of the same on merits and in accordance with law. - Decided conditionally in favour of assesssee.

Summary

Issues:
1. Condonation of delay in filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal.
2. Legality and validity of the order passed by the Tribunal.
3. Communication and service of the adjudication order to the Assessee.
4. Application of the Right to Information Act, 2005 in obtaining relevant information.
5. Discretion of the Tribunal in condoning delay and the imposition of costs.

Analysis:
1. The Assessee filed an appeal questioning the legality of an order passed by the Customs, Excise and Service Tax Appellate Tribunal, seeking condonation of a 266-day delay in filing the appeal. The Assessee claimed that due to the closure of the unit and unavailability of records, they only became aware of the adjudication order in 2011 through the Right to Information Act, 2005. The Assessee argued for condonation based on the peculiar circumstances. However, the Revenue contended that the show cause notice and adjudication order were duly served, with postal remarks indicating non-claim and refusal. The Tribunal refused to exercise discretion in favor of the Assessee, dismissing the application for condonation.

2. The High Court observed that substantial questions of law were raised in the appeal concerning the sustainability of the Tribunal's order. The Court considered whether the Tribunal was correct in holding that there was a delay in filing the appeal. The Senior Counsel for the Assessee argued that the adjudication order was served in 2011, not promptly after its issuance, and disputed the accuracy of the postal remarks cited by the Revenue. The Court noted that the delay of 266 days was not satisfactorily explained by the Assessee, who failed to file the appeal promptly even after receiving the order.

3. The Court emphasized that if doubts arose from the information provided under the Right to Information Act, 2005, the Tribunal should have condoned the delay in the interest of justice. Considering the Assessee's pursuit of remedy without negligence, the Court allowed the appeal, quashed the impugned order, and condoned the 266-day delay. However, the Court directed the Assessee to pay costs of Rs. 25,000 within four weeks. Upon payment, the Tribunal was instructed to restore, register, and hear the appeal on merits and in accordance with the law, keeping all contentions open for both parties.