2019 (6) TMI 115 - HC - Customs

Restoration of appeal - Service of Notice of Motion - order passed by the Prothonotary and Senior Master - HELD THAT - There is sufficient explanation for delay. Moreover, the objections were removed within the stipulated time. Therefore, a case is made out for restoration of the appeal. A conditional order cannot expect the party to do something which is not within its control. A conditional order can be always passed granting conditional time to remove office objections. However, onus of getting the matter numbered and registered cannot be put to a party. That is the job of the Registry. It will be appropriate if the learned Prothonotary and Senior Master takes a note of these observations. The delay of 2,386 days in filing notice of motion is only a technical delay which deserves to be condoned. Accordingly, notice of motion is made absolute in terms of prayer clauses (a) and (b) - the appeal shall not be dismissed under Rule 986 only on the ground that the appellant has failed to get the appeal numbered and registered.

Summary

Issues:
1. Condonation of delay in filing a customs appeal.
2. Setting aside the rejection of the appeal.
3. Restoration of the appeal.
4. Explanation for the delay of 2,386 days.
5. Duty of the Registry in numbering and registering appeals.

Analysis:
1. The applicant filed a customs appeal which got rejected due to failure to remove office objections within the stipulated time. A notice of motion was filed for condonation of delay of 483 days and setting aside the rejection. Subsequently, another notice of motion was filed for condonation of a delay of 2,386 days and restoration of the appeal.

2. The High Court examined the additional affidavit explaining the delay of 2,386 days, which was calculated from the original rejection date. The Court found a sufficient explanation for the delay and noted that objections were removed within the stipulated time, justifying the restoration of the appeal.

3. The Court highlighted the duty of the party to remove office objections and the duty of the Registry to number and register the matter. It emphasized that a conditional order cannot expect a party to do something beyond its control, such as numbering and registering the matter, which is the Registry's responsibility. The Court suggested the Prothonotary and Senior Master take note of these observations.

4. The delay of 2,386 days was considered a technical delay deserving condonation. The Court made the notice of motion absolute, ensuring the appeal would not be dismissed solely based on the appellant's failure to get it numbered and registered. It reiterated that it is the Registry's duty to promptly number and register the appeal for fresh admission before the Court.