2010 (2) TMI 491 - HC - Customs

Condonation of delay - when the person or the party claims that he should be served with communication or the notice it is also obligatory for them to make necessary declaration once there is a change in address or if the unit is closed. Other procedure and remedy under the Custom Act would have been availed of but the petitioner having not been vigilant cannot make any grievance to invoke discretionary jurisdiction under article 226 and 227 of Constitution of India. Further person who are aggrieved by the order of the Government or executive or Tribunal must approach with High Court with expedition. Held that - though right to file an appeal is a statutory right but if the party does not avail of the right it misses the bus and therefore cannot claim as a matter of absolute right. Submission that imposition of pre deposit condition by tribunal not valid rejected.

Issues Involved:
1. Issuance of writ of certiorari to quash impugned orders and recovery notice.
2. Alleged non-fulfillment of export obligations under the advance license.
3. Alleged non-service of show cause notice and violation of natural justice.
4. Alleged delay in filing an appeal and condonation of delay.
5. Imposition of pre-deposit condition by the Tribunal for condonation of delay.

Issue-wise Detailed Analysis:

1. Issuance of Writ of Certiorari to Quash Impugned Orders and Recovery Notice:
The petitioner sought a writ of certiorari to quash the impugned orders dated 11-8-1999, 15-11-2007, 31-1-2008, and the recovery notice dated 24-2-2006. The petitioner contended that the orders were passed without serving a show cause notice and without providing an opportunity for a hearing, thus violating the principles of natural justice. The court noted that the show cause notice was allegedly issued on 19-8-1997, and the petitioner was given chances to be heard, which were not availed. The court found that the petitioner had not cooperated during the adjudication proceedings, and the Asst. Commissioner of Central Excise had reported that the unit was closed, and the whereabouts of the party were unknown. The court rejected the petitioner's claim of non-service and violation of natural justice.

2. Alleged Non-fulfillment of Export Obligations under the Advance License:
The petitioner argued that it had fulfilled the export obligations under the advance license No. 309151 and that the license was value-based, not quantity-based. The court observed that the petitioner had not provided any record to prove the fulfillment of export obligations. The Asst. Commissioner's report indicated that the petitioner had deliberately suppressed facts regarding the availment of input stage credit (MODVAT) on the inputs used in the manufacture of export products. The court concluded that the petitioner had not discharged its obligations and upheld the impugned orders.

3. Alleged Non-service of Show Cause Notice and Violation of Natural Justice:
The petitioner contended that it never received the show cause notice or the order-in-original and was unaware of the adjudicating proceedings. The court noted that the notices were sent to the petitioner's last known address, and the petitioner had not informed the authorities about the closure of the unit or any change in address. The court emphasized that the petitioner had an obligation to communicate such changes to the authorities. The court found that the petitioner's claim of non-service was not credible and that there was no violation of natural justice.

4. Alleged Delay in Filing an Appeal and Condonation of Delay:
The petitioner filed an appeal before the CESTAT with a significant delay, claiming that the order-in-original was only served with the recovery notice on 19-6-2006. The court noted that even if the order was served in June 2006, the appeal was filed on 14-5-2007, almost a year later, with no satisfactory explanation for the delay. The Tribunal had observed that there was no explanation for the delay between 19-6-2006 and 14-5-2007 and had condoned the delay on the condition of depositing Rs. 50 lakhs. The court found the Tribunal's decision reasonable and upheld the condition imposed for condonation of delay.

5. Imposition of Pre-deposit Condition by the Tribunal for Condonation of Delay:
The petitioner argued that the condition of pre-deposit for condonation of delay was unjust and violated natural justice. The court noted that the Tribunal had imposed the condition to show the bona fides of the petitioner, given the gross delay and the petitioner's conduct. The court emphasized that condonation of delay is at the discretion of the court and is based on the explanation provided. The court found that the Tribunal had exercised its discretion judiciously and that the condition of pre-deposit was justified. The court rejected the petitioner's argument and upheld the Tribunal's order.

Conclusion:
The court concluded that the petitioner had not fulfilled its obligations, had not cooperated during the adjudication proceedings, and had not provided a satisfactory explanation for the delay in filing the appeal. The court found no violation of natural justice and upheld the impugned orders and the condition of pre-deposit imposed by the Tribunal. The petition was rejected in limine.

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