2019 (10) TMI 1333 - AT - Customs

Condonation of delay in filing the application - since the Counsel himself was travelling abroad, the appeal could not be filed within the stipulated period of six months - Rectification of mistake - HELD THAT - Since admittedly the Final Order, the rectification whereof is prayed, was received on 1st March, 2019. The time to file the application for rectification of mistake expires on 1st September, 2019 as Section 129B(2) of Custom Act, 1962 provides six months time to the Appellate Tribunal from the date of order to rectify any mistake apparent from the record or to amend any order passed by it under sub-section (1). Perusal thereof makes it clear that six months time to rectify/amend any order is provided to the Appellate Tribunal for either suo motu rectification or rectification on request of either of the parties to the appeal. The said period of six months has to reckon from the date of order. The provision is silent about any time extension in case the rectification of order is prayed by the party to the appeal. Tribunal has no inherent power and is bound by the language of the applicable statute - language of 129(B)(2) of the Customs Act specifically mentions that period of six months has to reckon from the date of order, the period cannot be enhanced by the Tribunal nor the Tribunal can hold that it is date of receipt of order from which period of six months shall reckon. It is observed that the date of receipt of impugned final order, admittedly is 1-3-2019. The six months time, if for sake of argument, is taken from the date of receipt of order, the same would have expired on 1st September, 2019. It is appellant s own version as apparent from the application that he approached his Counsel only on 22nd August, 2019, when he was informed about him travelling abroad. Thus, the only reason seeking condonation of delay is applicable to the last three days of entire period of six months, that too, when reckoning date is taken as receipt of order. Application dismissed.

Summary

Issues: Application for condonation of delay in filing application for rectification of mistake in Final Order.

The judgment deals with an application for condonation of delay in filing an application for rectification of mistake in Final Order No. 50267/2019. The appellant received the Final Order on 1st March, 2019, and sought condonation of delay as the counsel was traveling abroad and the appeal could not be filed within the stipulated six-month period. The appellant relied on the case of Commissioner of Central Excise, Jammu & Kashmir v. Steel Strips Ltd. The Departmental Representative opposed the application, stating that the statute does not provide for such condonation and the reason for delay was not sufficient, being at the end of the limitation period.

Upon hearing both parties, the Tribunal observed that the time to file the application for rectification of mistake expired on 1st September, 2019, as per Section 129B(2) of the Customs Act, 1962. The Tribunal noted that the provision allows for a six-month period from the date of the order for rectification, either suo motu or on request of a party. The Tribunal emphasized that it has no inherent power to extend the period beyond what is specified in the statute.

Analyzing the merits of the application, the Tribunal found that the appellant approached the counsel only on 22nd August, 2019, when informed about the counsel's travel plans. The Tribunal concluded that the reason for seeking condonation of delay only applied to the last three days of the six-month period, which had already expired by 1st September, 2019. The Tribunal dismissed the application, stating that the absence of the counsel beyond 30th June, 2019, was not a sufficient cause for the appellant to delay pursuing the application diligently. The Tribunal also clarified that the case law cited by the appellant was not applicable to the current situation, as the cause shown was deemed insufficient. Consequently, the application for condonation of delay was dismissed.