2018 (7) TMI 2097 - CGOVT - Customs

Condonation of delay in filing Departmental appeal - smuggling - illegal import - Confiscation - redemption fine - penalty - HELD THAT - There is no dispute that the Order-in-Original was passed on 28-3-2014, it was reviewed on 3-7-2014, the Review Order was communicated to the Adjudicating Authority on 4-7-2014 and the appeal before the Commissioner of Customs (Appeals) was filed on 11-8-2014. Whereas as per Section 129D(3) and (4) the appeal before the Commissioner (Appeals) should have been filed within one month of the receipt of the Review Order which was received on 4-7-2014. But in this case the appeal was filed acceptably after delay of 7 days and the same is rejected as time-barred by the Commissioner (Appeals) on the ground that he does not have any power to condone any delay under Section 129D of the Customs Act. For departmental appeal different period of limitation is stipulated under Section 129D for reviewing the order and filing the appeal thereafter and there is no power with the Commissioner (Appeals) to condone any delay under this Section. Even in the revision application it is admitted that the appeal against the OIO was filed under Section 129D only and not under Section 128 and thereby the limitation period of one month for filing an appeal from the date of receipt of the Review Order should have been strictly followed. But the appeal was undisputedly delayed by 7 days for which there is no power with the Commissioner (Appeals) or even with the Central Government to condone under any provision of the Customs Act. Even the applicant has not mentioned any such provision under which the Central Government can condone such delay. Revision application rejected.

Summary

Issues:
1. Delay in filing appeal before Commissioner of Customs (Appeals)
2. Power of condonation of delay under Customs Act
3. Review of Order-in-Original and subsequent appeal process

Analysis:
1. Delay in filing appeal before Commissioner of Customs (Appeals): The case involved a passenger who arrived at Kolkata Airport and had goods confiscated with a penalty imposed. The Order-in-Original was passed on 28-3-2014, reviewed on 3-7-2014, and communicated to the Adjudicating Authority on 4-7-2014. The appeal before the Commissioner of Customs (Appeals) was filed on 11-8-2014, which was 7 days after the permissible time limit as per Section 129D(3) and (4) of the Customs Act. The Commissioner (Appeals) rejected the appeal as time-barred, citing lack of power to condone any delay under Section 129D. The applicant argued that the delay should be condoned under Section 128, but it was deemed inapplicable for departmental appeals. The Central Government's power to condone the delay was also questioned, leading to the rejection of the revision application due to the undisputed delay of 7 days.

2. Power of condonation of delay under Customs Act: The applicant contended that the delay in filing the appeal should be condoned under Section 128 of the Customs Act, which allows the Commissioner (Appeals) to condone delays up to 30 days for non-departmental appeals. However, it was clarified that Section 128 did not apply to departmental appeals governed by Section 129D, which sets specific time limits for reviewing orders and filing appeals. The Commissioner (Appeals) lacked the authority to condone any delay under Section 129D, and the Central Government's power to condone such delays was not established by the applicant. Consequently, the argument for condonation under Section 128 was deemed unconvincing, and no provision was found to support the Central Government's intervention in condoning the delay.

3. Review of Order-in-Original and subsequent appeal process: The case highlighted the importance of adhering to the prescribed timelines for filing appeals under the Customs Act. The Order-in-Original, review process, and subsequent appeal were scrutinized to determine the validity of the delay in filing the appeal before the Commissioner of Customs (Appeals). The Commissioner (Appeals) upheld the time-barred nature of the appeal, emphasizing the lack of authority to condone delays under Section 129D. The rejection of the revision application underscored the significance of procedural compliance in customs matters, emphasizing the strict adherence to statutory provisions governing appeals and condonation of delays.

In conclusion, the judgment emphasized the strict adherence to statutory timelines and procedures under the Customs Act, highlighting the limitations on condonation of delays in filing appeals before the Commissioner of Customs (Appeals). The rejection of the revision application underscored the importance of procedural compliance and the absence of provisions allowing condonation of delays beyond the specified timelines.