2016 (1) TMI 10 - HC - Customs

Condonation of delay - Tribunal refused to condone the delay - Tribunal has insisted on every day s delay - Held that - The Tribunal has insisted on every day s delay being explained which, in the given facts and circumstances, was not necessary. In one case, the delay occurred because of the petitioner-applicant being unwell and in the second case, it was because of the absence of the applicant from Mumbai. In both cases, the Tribunal should have realised that the petitioner-applicant is a sole proprietor. - The delay was not deliberate or intentional, but for the illness and absence from Mumbai for some business work. The petitioner cannot be said to be grossly negligent or his conduct lacking in bona fides - appeals restored before the tribunal, however costs of ₹ 5000 imposed on the petitioner.

Summary

Issues: Condonation of delay in filing appeals before the Tribunal under the Customs Act, 1962

Analysis:
1. Entertainment of Writ Petition: The High Court acknowledged that ordinarily, a Writ Petition for the order sought by the petitioner would not be entertained as it is appealable under the Customs Act, 1962. However, the Court proceeded to review the impugned order with the assistance of both counsels.

2. Explanation for Delay: The Tribunal had insisted on explanations for each day's delay in filing the appeals. The High Court observed that such a stringent approach was not necessary in the given circumstances. The delay was attributed to the petitioner's illness in one case and absence from Mumbai for business work in the second case. Notably, the petitioner, a sole proprietor, demonstrated genuine reasons for the delay, which were not deliberate or intentional.

3. Non-Application of Mind: The High Court found that the Tribunal's orders suffered from non-application of mind and the discretion was not judiciously exercised. It was noted that a more holistic approach should have been taken by the Tribunal, considering the petitioner's circumstances and imposing conditions, such as costs, to condone the delay.

4. Decision and Conditions: Consequently, the High Court set aside the impugned orders, allowed the applications for condonation of delay, and imposed costs of &8377;5,000/- in each petition, to be paid within two weeks. Compliance with these conditions would lead to the Tribunal accepting and deciding the appeals. Failure to comply would result in the Tribunal's orders being maintained, with legal consequences following.

5. No Extension of Time: The High Court clarified that no extension of time beyond the specified two weeks would be granted. The petitions were allowed on the mentioned terms, emphasizing the importance of complying with the imposed conditions for the appeals to proceed before the Tribunal.

This detailed analysis of the judgment by the Bombay High Court highlights the considerations regarding the condonation of delay in filing appeals under the Customs Act, 1962, and the Court's assessment of the Tribunal's approach, ultimately leading to the setting aside of the impugned orders with specific conditions imposed on the petitioner.