2021 (11) TMI 668 - HC - Customs

Condonation of delay of 921 days in preferring the appeal - delay on the ground that similar matter related to Annual IEIS Scheme, the issue was already under litigation with regard to correct interpretation of Notification dated 25.09.2013 whereby amendments were made in the Foreign Trade Policy 2009-2014 - sufficient cause for delay present or not - HELD THAT - There are merit in the contention of the Respondent that there is no explanation which can be called as a sufficient cause for the delay between 25.02.2019 when the impugned judgment was pronounced and 25.03.2020 when the Nationwide lockdown was imposed. The timelines mentioned in the application are primarily focussed on explaining the delay between 25.03.2020 till the filing of the appeal, for the period prior thereto the only explanation is the filing of the SLP in the case of DIRECTOR GENERAL OF FOREIGN TRADE VERSUS M/S WELLDONE EXIM PVT. LTD. ANR. 2019 (9) TMI 1611 - SC ORDER . Even if this Court was to exclude the period of lockdown, the benefit cannot inure to the advantage of the Appellants inasmuch as there is a delay of nearly one year prior to the imposition of lockdown. This Court also fails to understand how the filing or pendency of an SLP in another matter prevented the Appellants from filing an appeal against the judgment impugned in the present case. It is a settled law that an Appellant must make out a sufficient cause for delay, to enable the Court to condone the same. Parties who are not vigilant and diligent in prosecuting and agitating their rights and act as mere fence sitters, cannot be permitted to take advantage of their lethargy and laxity. It is evident that the Appellants slept over their rights from 25.02.2019 to 25.03.2020 and cannot take advantage of their own wrong and seek condonation of delay. The Appellants have not made out a sufficient cause for condonation of delay of 921 days and, therefore, the application deserves to be dismissed. Since we are not inclined to condone the enormous delay of 921 days, we do not intend to enter into the merits of the appeal - Application dismissed.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Interpretation of Notification No. 43 dated 25.09.2013 regarding the Incremental Export Incentivisation Scheme (IEIS).

Detailed Analysis:

1. Condonation of Delay:
The appellants sought condonation of a 921-day delay in filing the appeal against the order dated 25.02.2019. The appellants argued that the delay was due to ongoing litigation in a similar matter regarding the interpretation of Notification No. 43 dated 25.09.2013, and the bureaucratic process within government departments, which was further exacerbated by the COVID-19 pandemic. The respondents opposed the application, highlighting that there was no sufficient explanation for the period between the judgment date and the nationwide lockdown declaration on 25.03.2020.

The court scrutinized the reasons provided by the appellants and found them insufficient to constitute a 'sufficient cause' for the delay. The court emphasized that the appellants had slept over their rights from 25.02.2019 to 25.03.2020 and could not take advantage of the lockdown period to justify the delay. Citing precedents from the Supreme Court, the court reiterated that the law of limitation binds everyone, including the government, and that condonation of delay is an exception, not a rule. The court concluded that the appellants had failed to provide an acceptable and cogent reason for the delay and dismissed the application for condonation of delay.

2. Interpretation of Notification No. 43 dated 25.09.2013:
On the merits, the appellants contended that the maximum benefit under the IEIS Scheme was limited to ?1 crore per IEC as per Notification No. 43 dated 25.09.2013. They argued that the learned Single Judge ignored this explicit limit in the notification. The respondents, however, pointed out Clause 3(ii) of the notification, which allowed claims exceeding ?1 crore to be subjected to greater scrutiny, implying that such claims could be permitted under stricter conditions.

The court noted that the issue had already been addressed by a Division Bench in the case of M/s. Welldone Exim Pvt. Ltd. vs. DGFT & Anr., where it was held that claims exceeding ?1 crore should not be outrightly rejected but subjected to greater scrutiny. The learned Single Judge had directed the appellants to re-examine the respondent's claim for export incentives in line with this interpretation.

Conclusion:
The court dismissed the application for condonation of delay due to the lack of a sufficient cause for the 921-day delay. Consequently, the appeal and other pending applications were also dismissed without delving into the merits of the case. The interpretation of Notification No. 43 dated 25.09.2013 by the Division Bench in the M/s. Welldone Exim case was upheld, reinforcing that claims exceeding ?1 crore should undergo greater scrutiny rather than being outrightly rejected.