2019 (7) TMI 1593 - HC - Customs

Condonation of delay of 273 days for filing an appeal - power of Commissioner to condone delay beyond 30 days - Petitioner challenges the impugned order, on the ground that the Order-in-Original was not served on them - principles of natural justice - HELD THAT - The petitioner has attempted to draw an inference by a statement that, since the other appellants has preferred an appeal against the Order-in-Original and the non-filing of the appeal by the petitioner would substantiate that the order was not served on them - I am not in agreement with such a submission made. Just because other appellants as well as the petitioner have filed certain appeals against the Orders-in-Original passed simultaneously with the present impugned order, it cannot be presumed that the Order-in- Original in the present case, was not served on the petitioner and the same cannot be cited as a sufficient cause for condoning the delay. Petition dismissed.

Issues:
Delay in filing an appeal under Customs Act, 1962 exceeding 30 days; Power of High Courts under Article 226 to condone delay; Jurisdiction of High Court under Article 226; Service of Order-in-Original on petitioner.

Analysis:
1. The judgment deals with the rejection of an application seeking to condone a delay of 273 days in filing an appeal against an Order-in-Original dated 07.05.2005. The Commissioner of Customs (Appeals) rejected the application citing the proviso to Section 128(1) of the Customs Act, 1962, which does not permit condonation of delays exceeding 30 days. This decision was supported by a Supreme Court ruling in the case of Singh Enterprises vs Commissioner of Central Excise, Jamshedpur, where it was held that the Commissioner lacks the authority to condone delays beyond 30 days.

2. The petitioner argued that even if the Commissioner lacks the power to condone the delay, the High Courts, under Article 226 of the Constitution of India, can condone delays in the interest of justice. Reference was made to a Full Bench decision of the Hyderabad High Court in the case of Electronics Corporation of India Ltd. vs Union of India to support this argument.

3. The Senior Standing Counsel for the respondents relied on the Singh Enterprises case and contended that the Supreme Court had emphasized that even High Courts should not entertain requests to condone delays in filing appeals.

4. The judgment further delves into the jurisdiction of High Courts under Article 226 of the Constitution of India. It references various Supreme Court decisions to establish that the High Court's powers under Article 226 are an essential part of the Constitution's basic structure and cannot be restricted by any law.

5. It clarifies that the Singh Enterprises case does not imply that High Courts are devoid of their powers under Article 226 to condone delays. While acknowledging that such powers should be used sparingly, the judgment emphasizes that the rarest of cases may warrant the exercise of such powers, depending on the facts and circumstances of each case.

6. The petitioner claimed that the Order-in-Original was not served on them, basing this assertion on the simultaneous filing of appeals by other appellants against the same order. However, the court did not agree with this contention, stating that the mere filing of appeals by others does not conclusively prove non-service of the order on the petitioner.

7. The respondents provided evidence to support that the Order-in-Original was indeed served on the petitioner. Consequently, the court found no merit in the petitioner's argument regarding non-service of the order, further weakening the petitioner's case.

8. Ultimately, the court dismissed the writ petition, concluding that there was no valid reason to interfere with the impugned order. The judgment highlights the importance of adhering to statutory timelines and the need for exceptional circumstances to justify the condonation of delays, emphasizing the discretion of High Courts in such matters.

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