2022 (11) TMI 936 - HC - Customs

Maintainability of petition - availability of alternative remedy of appeal - Condonation of delay of 178 days in filing appeal - no reason is recorded for rejecting the explanation tendered by the petitioner - HELD THAT - Considering the peculiar facts of the case and passage of time spent by the petitioner before this court since 2019, especially in the set of facts obtained in this case, we are inclined to entertain this petition, though that the appeal under Section 130 of the Customs Act, 1962 is maintainable. It appears on perusal of the order passed by the CESTAT that no reason is recorded for rejecting the explanation tendered by the petitioner for delay of 178 days in filing Appeal. It is well settled legal position that in order to do the substantial justice, the delay should not come in way of litigant. In that view of the matter, the delay of 178 days caused in preferring the Appeal is ordered to be condoned and the said appeal is restored to the file of the CESTAT.

Summary

Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal rejecting delay condonation application.

Analysis:
The petitioner sought to quash the order by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 9.2.2018, which dismissed the application to condone a 178-day delay in filing an appeal against the order dated 13.7.2015 by the Commissioner (Appeals). Initially challenging three orders, the petitioner restricted the petition to contest only the CESTAT's delay condonation rejection order. The petitioner explained the delay citing the departure of their clerk before the matter's hearing by the Commissioner (Appeals) and subsequent timely appeal filing upon noticing the order. Despite receiving notice, the petitioner was absent during the Tribunal hearing, resulting in an ex-parte rejection of the delay condonation application without providing reasons.

The respondent contended that the appeal should have been filed under Section 130 of the Customs Act, 1962, as the issue pertained to classification, rendering the appeal before CESTAT non-maintainable. They argued against entertaining the petition under extraordinary jurisdiction. Upon reviewing submissions and the CESTAT's order, the High Court decided to entertain the petition, acknowledging the maintainability of the appeal under Section 130 of the Customs Act, 1962.

The High Court observed that the CESTAT's order lacked recorded reasons for rejecting the petitioner's delay explanation. Emphasizing the principle of not letting delay obstruct justice, the Court ordered the condonation of the 178-day delay in filing the appeal and restored it to the CESTAT's file. The Court clarified that it refrained from expressing any opinion on the case's merits, allowing both parties to present their arguments before the Tribunal in the ongoing appeal. The rule was made absolute to this extent, with no costs imposed.