2004 (8) TMI 375 - HC - Customs

Delay in Filing an Appeal to the Commissioner condonation of delay power to condone - Held that - the first appellate authority did not condone the delay of seven (7) months sixteen (16) days on the ground that it had no power under Section 128 of the Customs Act, 1962. Three months period is provided for filing the appeals and the Collector (Appeals) is empowered to allow further period of three months for presenting the appeal, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal, within the period of three months. In any case, the appeal cannot be presented before the Collector beyond six months. Therefore, in our view the order of the appellate authority cannot be faulted.

Issues:
1. Extension of time for presenting an appeal before the Customs, Excise & Service Tax Appellate Tribunal.
2. Challenge to orders passed by the appellate authorities.
3. Jurisdiction of the High Court under Article 226 of the Constitution of India.
4. Power of the first appellate authority to condone delay under Section 128 of the Customs Act, 1962.
5. Filing of a writ petition in the High Court of A.P. when the cause of action arose in Mumbai.

Extension of time for presenting an appeal:
The Commissioner of Customs (appeals) in Mumbai declined to grant an extension of time for presenting an appeal, which was challenged before the Customs, Excise & Service Tax Appellate Tribunal in Mumbai. The Tribunal dismissed the appeal, exhausting all remedies in Mumbai. The petitioner then filed a writ petition before the High Court at Hyderabad, seeking to set aside the orders passed by the appellate authorities. The court noted that the petitioner could not challenge the original order after such a long delay of eight years and declined to exercise jurisdiction under Article 226 of the Constitution of India in this context.

Challenge to orders by appellate authorities:
The first appellate authority did not condone a delay of seven months and sixteen days, citing a lack of power under Section 128 of the Customs Act, 1962. The Act allows a three-month period for filing appeals, extendable by another three months if sufficient cause is shown. However, the appeal cannot be presented beyond six months. The court found no fault with the decision of the first appellate authority in this regard. Subsequently, the second appellate authority also dismissed the appeal based on the same grounds. The court expressed doubts about the jurisdiction of the High Court in this matter, as the dispute originated in Mumbai, but refrained from settling this issue due to the findings on the appeals.

Jurisdiction of the High Court under Article 226:
The High Court declined to entertain the writ petition challenging the orders of the appellate authorities, emphasizing that the cause of action and the entire controversy arose in Mumbai. The court dismissed the writ petition, concluding that it lacked merit and awarded no costs in the matter.

Power of the first appellate authority under Section 128 of the Customs Act:
The court upheld the decision of the first appellate authority to not condone the delay in filing the appeal, as it found no fault in the application of the provisions of Section 128 of the Customs Act, 1962. The Act allows for a specific timeframe for filing appeals and grants limited discretion to the Collector (Appeals) to extend this period under certain conditions.

Filing of a writ petition in the High Court of A.P.:
Despite the dispute originating in Mumbai, the petitioner filed a writ petition in the High Court of A.P. challenging the orders of the appellate authorities. The court did not delve into the question of jurisdiction due to the dismissal of the writ petition based on the lack of merit. The court ultimately dismissed the writ petition, emphasizing that the cause of action and the relevant events occurred in Mumbai, not within the jurisdiction of the High Court of A.P.

In conclusion, the High Court of A.P. dismissed the writ petition challenging the orders of the appellate authorities regarding the extension of time for presenting an appeal, citing lack of merit and the fact that the cause of action and the dispute originated in Mumbai. The court upheld the decisions of the appellate authorities and declined to exercise jurisdiction under Article 226 of the Constitution of India in this matter.

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