2020 (5) TMI 642 - AT - Customs

Condonation of delay of 135 days in filing appeal - case of appellant is that delay caused due to applicant being busy in compliance of some Department s direction and also that the Counsel did not received the notice in time - HELD THAT - The ground that applicant being busy in compliance of some Department s direction, is not opined sufficient explanation for the delay as big as of 135 days - There have been findings against the present importer in the decision of M/S. JAISWAL IMPORT CARGO SERVICES LIMITED VERSUS COMMISSIONER OF CUSTOMS 2019 (8) TMI 497 - CESTAT NEW DELHI as was filed by the applicants, co-noticee. It becomes clear that before the said decision the applicant was not inclined to file the appeal and the present appeal is the outcome due to the said decision - thus the reason is not acceptable for not been the sufficient cause explaining as big delay as of 135 days. Delay on the ground that the Counsel did not received the notice in time - HELD THAT - There is no statutory mandate of any notice, summon, or copy of any order to be served upon the Counsel. The service has to be effected on the party concerned. The said service, in the present case of the order under challenge dated 22.03.2019 admittedly got affected on the appellant on 26th March, 2019 itself. Failure on his part to not to approach his Counsel and to not to seek the further advice, amounts to negligence, as well as non-pursuance on the part of the appellant. Same cannot be held a sufficient cause as is required under section 5 of Limitation Act to explain the impugned delay. In absence thereof, the delay cannot be condoned. Application dismissed.

Summary

Issues: Condonation of Delay in Filing Appeal

Analysis:
The appellant sought condonation of a 135-day delay in filing an appeal against an order dated 22nd March, 2019, citing reasons of being occupied with complying with Department's directions and not receiving a copy of the impugned order. The appellant's counsel argued that the delay should be excused due to these grounds.

The Department's representative contended that the appellant received the order within 3 days and highlighted that another party involved in the matter had already filed an appeal post the decision date. The Department opposed the condonation of delay based on these arguments.

Upon review, the Tribunal found that the appellant had received the order promptly and that the reasons provided for the delay were not satisfactory. It was noted that the appellant's decision to file the appeal was influenced by a subsequent decision against a co-noticee, indicating a lack of inclination to appeal before that point.

Regarding the argument about not receiving proper advice from the counsel due to not being served the order, the Tribunal clarified that the responsibility lies with the party concerned, not the counsel. The failure of the appellant to promptly seek advice and pursue the matter was deemed as negligence, which did not qualify as a "sufficient cause" under the Limitation Act to justify the delay.

Ultimately, the Tribunal dismissed the application for condonation of delay, leading to the dismissal of the impugned appeal as well. The decision was pronounced in open court, and the application was rejected due to the lack of valid reasons for the delay in filing the appeal.