2019 (1) TMI 1124 - HC - Customs

Condonation of delay of 1662 days in filing appeal - seizure of 59 bars of gold - improper filing of the affidavit and the technical defects noticed - Held that - There was a clear abuse of process of law in so far as the appellant s Power of Attorney having sworn to an affidavit, which has been shown to be false on the basis of the conflicting statements made in that affidavit itself. The accompanying circumstances also indicate that there was a deliberate attempt to mislead the Tribunal by blatant statements of falsehood. The appellant had also sought to file an appeal from the order of the Tribunal again asserting the averments as stated in the affidavit. The exemplary cost has to be imposed on the appellant - the cost to be paid by the appellant is quantified at Rupees One lakh, which shall also be recovered from the appellant with interest at the rate as provided in the statute, from the date of filing of the second affidavit, ie. from 15.02.2007.

Summary

Issues:
1. Condonation of delay in filing appeal.
2. Service of notice under the Customs Act, 1962.
3. Allegations of deliberate falsehood and abuse of process of law.

Condonation of Delay in Filing Appeal:
The appellant filed an appeal challenging an order of the Commissioner of Customs from 2001, with a delay of 1662 days. Initially, the appellant claimed the order was communicated on 27.05.2001, justifying the delay. However, conflicting statements emerged during the proceedings, with a subsequent affidavit alleging the appellant only knew of the order in 2005. The Tribunal scrutinized these contradictions, concluding the appellant failed to take timely action upon learning of the order in 2004. The appellant's attempt to amend dates and explanations were deemed misleading, leading to the dismissal of the appeal.

Service of Notice under the Customs Act, 1962:
The Department relied on a registered post acknowledgment to establish service of the Commissioner's order, despite the appellant's denial of receipt. Citing Section 153 of the Customs Act, the Tribunal held that sending notice by registered post suffices for service, without requiring actual receipt by the addressee. The appellant's argument, referencing a Supreme Court case on personal tender for service, was distinguished as inapplicable due to the differing service methods employed in the present case. The Tribunal also invoked Section 27 of the General Clauses Act, deeming service effective through registered post unless proven otherwise, which the appellant failed to do.

Allegations of Deliberate Falsehood and Abuse of Process of Law:
The Tribunal uncovered discrepancies in the appellant's affidavits regarding the date of order knowledge and payment of penalties, indicating deliberate falsehood. Notably, the appellant's Power of Attorney contradicted previous statements, leading to a finding of an abuse of process of law. The Tribunal imposed exemplary costs of Rupees One lakh on the appellant, to be recovered with interest from a specified date. This decision was reinforced by the appellant's attempt to refile an appeal based on the same misleading statements, further solidifying the Tribunal's stance on the abuse of process.

In conclusion, the High Court dismissed the appeal, emphasizing the abuse of process by the appellant through misleading statements and deliberate falsehoods, leading to the imposition of exemplary costs. The judgment underscores the importance of factual accuracy in legal proceedings and the consequences of attempting to mislead the court.