2021 (3) TMI 357 - AT - Customs

Condonation of delay of 21 days in filing appeal - power of Commissioner (Appeals) to condone delay - Section 128 (1) of the Customs Act, 1962 - Interest on delayed refund of SAD - Section 27A of the Customs Act, 1962 - HELD THAT - Tribunal in CHAKRAPANI VYAPAR PVT LTD, SARAF FINCOM PVT LTD VERSUS COMMISSIONER OF CUSTOMS BANGALORE-CUS 2018 (11) TMI 1399 - CESTAT BANGALORE allowed the appeal of the appellant with consequential relief and by following the said order, the Original Authority granted the refund but did not grant the interest and when the appeal against the refusal to grant the interest was filed before the Commissioner, the learned Commissioner did not decide the appeal on merits and rejected the appeal of the appellant on time bar - the reasons given by the appellant is quite convincing and moreover there was a delay of only 21 days which was within the condonable power of the Commissioner (Appeals) and the Commissioner (Appeals) should have exercise his power by condoning the delay and decided the appeal on merits. The delay of 21 days in filing the appeal before Commissioner (Appeals) is not an inordinate delay and is not intentional and the appellant does not stand to gain anything by filing the appeal with the delay and the approach of the various Courts is that the delay should be liberally condoned and matters should be decided on merits - the delay is condoned - matters remanded to the learned Commissioner with a direction to decide the same on merit within a period of one month from the date of receipt of this order after following the principles of natural justice. Appeal allowed by way of remand.

Summary

Issues:
Delay in filing appeals, condonation of delay, maintainability of appeals, claim of interest on delayed refund, power of Commissioner (Appeals) to condone delay.

Analysis:

1. Delay in Filing Appeals:
The appellants filed two appeals against orders dated 23.09.2019, where the Commissioner (Appeals) refused to condone a 21-day delay in filing the appeals and dismissed them as not maintainable. The issue in both appeals being identical, they were taken up together for discussion and disposal.

2. Condonation of Delay:
The appellant argued that the delay was unintentional and well within the condonable power of the Commissioner (Appeals) under Section 128(1) of the Customs Act, 1962. The appellant initially chose not to file the appeal due to the small amount involved but later filed it apprehending potential implications on similar cases with higher stakes. The delay was not intentional, and no advantage accrued to the appellant by filing late.

3. Maintainability of Appeals:
The Commissioner (Appeals) rejected the appeals as not maintainable due to the delay. However, the Tribunal found the reasons given by the appellant convincing and the delay of 21 days not inordinate. The approach of various courts is to liberally condone delays and decide matters on their merits.

4. Claim of Interest on Delayed Refund:
The dispute in the appeals arose from the claim of interest under Section 27A of the Customs Act, 1962 on delayed refund of SAD on imported plastic granules sold domestically. The Original Authority granted the refund but did not grant interest. The Tribunal had previously allowed a similar appeal with consequential relief.

5. Decision and Remand:
The Tribunal held that declining to condone the 21-day delay was not justified and set aside the impugned orders. The delay was condoned, and both matters were remanded to the Commissioner (Appeals) with a direction to decide them on merit within one month from the date of the order, following the principles of natural justice.

In conclusion, the Tribunal's decision focused on the power of the Commissioner (Appeals) to condone delays, the maintainability of appeals, and the claim of interest on delayed refunds. The Tribunal emphasized the need to consider reasons for delays, the lack of advantage gained by the appellant, and the importance of deciding matters on their merits.