2017 (2) TMI 422 - HC - Customs

Maintainability of appeal - time limitation - Section 128 of the Customs Act, 1962 - whether in the given facts and circumstances, this Court should treat the representation dated 28.03.2016, or, the representation dated 27.04.2016, as an appeal in the eyes of law? Held that - while there can be no cavil with the proposition that respondent No.2 has no power to condone the delay under the provisions of Section 128 of the Act, what is required to be considered in the given facts obtaining between the parties for the present, is that, should this Court treat the representations made by the petitioner as appeals filed to assail the order-in-original. Litigants, who claim to be aggrieved, should approach the Courts in time. Should they fail to do so, their right may survive, but the remedy available to agitate the right may not be accessible - the petitioner did approach the correct forum, at least, via the representation, dated 27.04.2016, in time, though, not in the manner prescribed under the rules - this was more an error which pertained to the form than the substance of the matter. Impugned order set aside with a direction to respondent No.2 to decide the appeal on merits, subject to the petitioner depositing a cost of ₹ 10,000/- - appeal allowed by way of remand.

Summary

Issues:
1. Merits of the petitioner's matter not decided.
2. Order-in-original dated 04.02.2016 challenged.
3. Order of the Commissioner of Customs (Appeals) dated 06.07.2016 challenged.
4. Dismissal of the appeal on the ground of limitation.
5. Interpretation of representations as appeals in the eyes of the law.

Analysis:
1. The judgment addresses the grievance that the petitioner's matter was not decided on merits. The order-in-original dated 04.02.2016 added technical license fees to the capital value of imported machinery. The petitioner disputed this, questioning the jurisdiction of the Adjudicating Authority. The Commissioner of Customs (Appeals) dismissed the appeal on the ground of limitation, based on the Customs Act, 1962. The petitioner's representations were not initially treated as appeals, leading to the current legal challenge.

2. The petitioner lodged a letter on 28.03.2016, highlighting difficulties faced as a woman entrepreneur and seeking withdrawal of the order-in-original. This representation was not treated as an appeal. A subsequent communication on 27.04.2016 was sent to the Commissioner of Customs (Appeals), challenging the order-in-original, albeit not in the prescribed form. The appeal was dismissed due to being beyond the limitation period, prompting the petitioner to file the writ petition.

3. The main issue was whether the representations could be considered as appeals in the eyes of the law. The petitioner argued that the second representation should be treated as an appeal, despite not being in the prescribed form. The respondents contended that neither representation raised grounds of challenge on merits and that the appeal was time-barred under Section 128(1) of the Act.

4. The judge analyzed the representations and concluded that the petitioner's grievances were clearly articulated, even if not in the prescribed form. Emphasizing that the right to contest on merits should not be lost due to technicalities, the judge set aside the dismissal order and directed a review on merits, subject to a cost deposit.

5. The judgment highlighted the importance of adhering to limitation periods while acknowledging the petitioner's timely approach to the correct forum, albeit not in the prescribed manner. The decision aimed to balance the need for adherence to procedural rules with ensuring access to justice for aggrieved parties.