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2022 (12) TMI 828 - AT - CustomsMaintainability of appeal - non deposit of 7.5% of the amount of duty as was confirmed by the original adjudicating authority - appeal was not filed within 60 days of the date of receiving the Order-in-Original rather it was filed after a delay of two years - HELD THAT - There is no denial to the fact that the appeal before Commissioner (Appeals) was filed after a delay of more than two and a half years. The only reason to justifying the delay, the only sufficient cause resulting into said delay is cited as the negligence of the previous counsel of the appellant. To appreciate the same, the record of the impugned appeal is perused. It is apparent that no reply to the show cause notice was filed by the appellant. There is nothing on record to show that any counsel was engaged who failed to filed the said reply. From the Order-in-Original, It is observed that three notices of personal appearance were served upon the appellant i.e. for 20.12.2016, 13.01.2017 and 02.02.2017. No doubt the appellant through their previous counsel had responded to the notice dated 20.12.2016 and 13.01.2017 but it is simultaneously apparent on record that the time requested by the counsel to submit his defense was duly afforded by the original adjudicating authority. Before Commissioner (Appeals) also the notice of personal hearing was granted to the appellant on 23.06.2021. The previous counsel for the appellant instantly vide e-mail dated 25.06.2021 requested for another date. His request was accepted, however, on the next date of hearing, the counsel failed to appear. There is nothing on record to show any step ever taken by the appellant to enquire the absence of the appellant s counsel or to enquire about the time taken by him for filing his defense before the adjudicating authority. These observations are opined sufficient to falsify the allegations against the previous counsel that he was negligent and that he was responsible for these delay, as substantial as that of more than two and a half years, for filing the appeal before Commissioner (Appeals). There is not even any affidavit of the said previous counsel on record, acknowledging the alleged negligence on his part. It is apparent that the appellant had even failed to observe the timeline of the EPCG License as was granted to him. Not even once he appeared before the adjudicating authorities below. As already observed the grounds cited in the present case are not held to be the sufficient cause for reasonably explaining the substantial delay of more than two and half years. Hence, I do not find it to be a fit case to be where substantial delay in filing appeal should be condoned. There hereby remains no reason for the matter to be remanded back to Commissioner (Appeals) for adjudication on merits, irrespective that the another ground on which Commissioner (Appeals) has dismissed i.e. about the deposit 7.5% of the demands stands duly complied with - the appeal is dismissed.
Issues:
- Delay in filing the appeal before Commissioner (Appeals) - Non-deposit of 7.5% of the amount of duty confirmed by the original adjudicating authority Analysis: - Delay in filing the appeal before Commissioner (Appeals): - The appellant acknowledged a delay of over two years in filing the appeal, attributing it to the negligence of the previous counsel. - The appellant argued that the previous counsel's negligence led to the delay and cited case laws to support the contention that the appellant should not be penalized for the counsel's fault. - However, the tribunal observed that there was no evidence of negligence by the previous counsel. The appellant had failed to file a reply to the show cause notice, and the previous counsel had requested and been granted time to submit a defense. - The tribunal found that the appellant had not shown due diligence in pursuing the matter and that the delay could not be justified by blaming the previous counsel. - Citing legal principles, the tribunal concluded that the delay was not satisfactorily explained and dismissed the appeal. - Non-deposit of 7.5% of the amount of duty: - The appellant had deposited 10% of the duty amount, including the 7.5% required before filing the appeal before the Commissioner (Appeals). - The tribunal noted that this deposit requirement had been met, and there was no objection to the matter being remanded back to the Commissioner (Appeals) for adjudication on merits. - Ultimately, the tribunal upheld the order dismissing the appeal, stating that there was no need for remand despite the deposit issue being resolved. In conclusion, the tribunal upheld the dismissal of the appeal due to the substantial delay in filing, despite the deposit issue being addressed. The appellant's attempt to blame the previous counsel for the delay was not accepted, and the tribunal found no sufficient cause to condone the delay. The legal principles cited did not apply to the circumstances of the case, leading to the dismissal of the appeal.
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