2019 (7) TMI 118 - HC - Customs

Condonation of delay in filing appeal - appeal was wrongly filed before wrong forum - HELD THAT - The appellant specifically took the plea that it filed an appeal before the Deputy Commissioner of Customs, in the first instance, under the misconception that the said authority was the appellate authority but having realized it s mistake, it preferred an appeal before the appropriate appellate authority. The tribunal, however, found that this plea was not substantiated with any evidence and on that ground held against the appellant. Though no material seems to have been produced before the tribunal in support of the plea taken by the appellant, the said lapse has been cured in this appeal. The appeal submitted by the appellant before the Deputy Commissioner of Customs, Air Cargo Terminal, Shamshabad Airport, Hyderabad, on 28.03.2016 is now placed on record and the same bears the endorsement of the office of the Deputy Commissioner of Customs, Air Cargo Complex, Shamshabad, Hyderabad, with the date 28.03.2016 in proof of receipt thereof. Therefore, it cannot be doubted, at this stage that the appellant did, in fact, prefer an appeal before the wrong authority on 28.03.2016, as claimed by it. The delay is condoned - the appeal shall stand restored to the file of the Commissioner of Customs and Central Excise (Appeals), the second respondent herein for consideration afresh on merits and in accordance with law - appeal allowed.

Summary

Issues:
Appeal under Section 130 of the Customs Act, 1962 against penalty imposed by Assistant Commissioner of Customs. Delay in filing appeal before the appropriate appellate authority. Plea of appellant regarding approaching wrong authority initially. Concession by Customs authorities regarding the delay. Interpretation of the statutory scheme and applicability of relevant case law.

Analysis:
The judgment pertains to an appeal under Section 130 of the Customs Act, 1962 against a penalty imposed by the Assistant Commissioner of Customs. The appellant received the Order-in-Original on 02.01.2016 and filed an appeal before the Deputy Commissioner of Customs on 28.03.2016, realizing later that it was the wrong authority. The appeal was then filed before the Commissioner (Appeals) on 04.04.2016, which was dismissed as being beyond the limitation period under Section 128 of the Act. The matter was further taken to the Customs, Excise and Service Tax Appellate Tribunal, which upheld the dismissal due to the delay in filing the appeal.

The tribunal found that the appellant's plea of initially approaching the wrong authority was unsubstantiated, but in the current appeal, evidence was produced to support this claim. The appellant's appeal before the Deputy Commissioner of Customs, Air Cargo Terminal, Shamshabad Airport, Hyderabad, dated 28.03.2016, was placed on record with proof of receipt, confirming the initial filing before the wrong authority. The delay in approaching the appropriate appellate authority was only three days, as acknowledged by the Customs authorities.

Considering the circumstances, the court held that the delay of three days in approaching the correct authority after initially filing with the wrong authority does not fall within the scope of the law laid down by the Supreme Court in a specific case. Consequently, the court allowed the appeal, setting aside the tribunal's order and the Commissioner (Appeals)'s order. The appeal was restored to the file of the Commissioner of Customs and Central Excise (Appeals) for fresh consideration on merits and in accordance with the law. The judgment concluded by stating that there would be no order as to costs and pending miscellaneous petitions would stand closed.