2019 (9) TMI 79 - AT - Customs

Smuggling - Gold - provisional release of the vehicle - time limitation - appeal ought to have been filed within 90 days including the condonable period as provided in the statute - HELD THAT - The appellant was diligently prosecuting the appeal filed before Commissioner (Appeals) against the order of provisional release. The Deputy Director of DRI vide Order, dated 15.01.2018 had directed for provisional release of the vehicle under provisions of section 110A of the Customs Act, 1962 on deposit of cash security of ₹ 5 lakhs. Aggrieved by such order, the appellant being the owner of the vehicle had filed an appeal before Commissioner (Appeals). They were given a personal hearing in this appeal on 29.06.2018 on which date the appellant had informed the Commissioner (Appeals) that the proceedings in respect of the show-cause notice issued, pursuant to the investigation had culminated in passing the Order-in-Original, dated 02.05.2018. Even then the Commissioner (Appeals) has taken another one month to dismiss the appeal observing that the application for provisional release has become infructuous. Had the appellant been informed that they could file an appeal against the Order-in-Original, dated 02.05.2018, and that the request for provisional release of vehicle has become infructuous on the date of personal hearing itself, the appellant would not have waited or continued to prosecute the appeal against the provisional release order. Thus, it can be seen that all through till the date of filing the appeal against this impugned order on 04.09.2018, the appellant has been consistently and diligently prosecuting her grievances for release of the vehicle. The Commissioner (Appeals), who while hearing the appeal also has a duty to inform the appellants at the time of personal hearing that when the show-cause notice has culminated in confirming confiscation of the vehicle, the application for provisional release cannot sustain. In not doing so, on the date of personal hearing itself, and thereafter passing the order after one month which was served much later sufficiently explains the reasons for the delay - the period taken by the appellant for prosecuting the grievance before the wrong authority ought to be excluded. Thus, when such period is excluded the appeal would be within time. Taking note of these facts and also together with the finding of fact in the Order-in-Original that the appellant had no involvement in the smuggling of the gold, she has to be given a chance to contest her grievance for release of the vehicle on merits. The appeal is remanded to the Commissioner (Appeals), who is directed to consider the same on merits - Appeal allowed by way of remand.

Summary

Issues:
1. Time-barred appeal against Order-in-Original dated 02.05.2018 due to delay in filing.
2. Exclusion of time taken for prosecuting appeal before wrong authority for computing period of limitation.

Analysis:
1. The appellant, owner of a vehicle seized in a gold smuggling case, filed an appeal for provisional release after officers recovered gold bars concealed in the car. The appeal was dismissed by Commissioner (Appeals) as infructuous due to passing of Order-in-Original on 02.05.2018. Subsequently, an appeal was filed against the Order-in-Original on 04.09.2018, deemed time-barred by the Revenue. The appellant argued that time taken for prosecuting the appeal before the wrong authority should be excluded for limitation calculation.

2. The appellant diligently pursued the appeal for provisional release, unaware of the impending Order-in-Original. Despite informing Commissioner (Appeals) about the culminated proceedings, the appeal was dismissed a month later. The appellant believed the security amount for release would be reduced, leading to the delay in filing the appeal against the Order-in-Original. Citing precedents, the appellant sought exclusion of time spent in prosecuting the appeal before the wrong authority.

3. The Revenue contended that the appeal against Order-in-Original was filed beyond the statutory period, emphasizing the need for timely filing as per the law. Relying on a legal precedent, the Revenue supported the rejection of the appeal as time-barred.

4. The Tribunal noted the appellant's consistent efforts in pursuing the release of the vehicle, even after the Order-in-Original was passed. Considering the circumstances and legal principles, the Tribunal found merit in excluding the time taken for prosecuting the appeal before the wrong authority. Referring to a Supreme Court decision, the Tribunal held that the appeal was not time-barred and remanded the case to the Commissioner (Appeals) for consideration on merits.

5. The Tribunal set aside the impugned order, allowing the appeal by remand to the Commissioner (Appeals) for a fresh consideration on the merits of the case, acknowledging the appellant's right to contest the grievance for the release of the vehicle.

This detailed analysis of the judgment highlights the procedural complexities, legal arguments, and the Tribunal's decision to remand the case for further review based on the exclusion of time taken for prosecuting the appeal before the wrong authority.