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2013 (4) TMI 510 - AT - CustomsCondonation of delay - assessee submits that there is a delay in filing the appeal as they had moved the Hon ble Madras High Court and the Hon ble Supreme Court against the impugned order, which may be condoned - Held that - As per Section 129A every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the party preferring the appeal. In this case, the applicant received the order on 2.8.2010 and filed writ petition in the same month as claimed by the learned Advocate. By judgment dated 25.11.2010, the Hon ble Division Bench of Madras High Court directed that if the applicant so prefers the appeal, the time spent in the proceeding before the Hon ble High Court shall be excluded for calculating the period of limitation. Even to calculate the three months from the date of the Hon ble High Court s decision then the applicant should have filed the appeal on or before 24.2.2011. But the applicant had not filed the appeal within the limitation as per direction of the Hon ble High Court and it has filed on 23.6.2011. It is beyond the period of three months as provided under Section 129A of the Customs Act, 1962. The submission of the learned counsel that the order of the Hon ble Supreme Court has merged with the order of the Hon ble High Court is not acceptable for the reason that the Division Bench of the High Court has given a specific direction that if the applicant so prefers, the appeal time spent in these proceedings (i.e. writ petition) shall be excluded for calculating the period of limitation, which was not complied with by the applicant. Accordingly, the COD application is rejected.
Issues: Delay in filing appeal, exclusion of time spent in previous proceedings, compliance with Section 129A of the Customs Act, 1962
Delay in filing appeal: The judgment addresses the issue of condoning the delay in filing the appeal. The applicant received the impugned order on 2.8.2010 but filed the appeal on 23.6.2011. The applicant had moved the High Court and Supreme Court against the impugned order, resulting in delays. The Division Bench of the High Court directed that the time spent in those proceedings should be excluded for calculating the period of limitation. However, the applicant did not file the appeal within the three-month period as provided under Section 129A of the Customs Act, 1962. The argument that the order of the Supreme Court merged with the High Court's order was rejected, as the specific direction of the Division Bench regarding the exclusion of time was not followed by the applicant. Exclusion of time spent in previous proceedings: The judgment discusses the contention regarding the exclusion of the time spent in the proceedings before the High Court. The applicant claimed that the time spent in those proceedings should be excluded for calculating the period of limitation. However, the learned AR argued that there was a delay of about 120 days, excluding the period of proceedings before the High Court. The Division Bench of the High Court had directed that the time spent in those proceedings should be excluded, but the applicant failed to comply with this direction, leading to the rejection of the condonation application. Compliance with Section 129A of the Customs Act, 1962: The judgment analyzes the compliance with Section 129A of the Customs Act, 1962, which requires every appeal to be filed within three months from the date of communication of the order. The applicant in this case received the order on 2.8.2010 and filed the appeal on 23.6.2011. The Division Bench of the High Court had given a specific direction regarding the exclusion of time spent in the proceedings before the High Court for calculating the period of limitation. Despite this direction, the applicant failed to file the appeal within the stipulated period, resulting in the rejection of the condonation application and dismissal of the appeal. In conclusion, the judgment highlights the importance of complying with the statutory provisions regarding the filing of appeals within the prescribed time limits. The failure to adhere to the directions of the High Court regarding the exclusion of time spent in previous proceedings led to the dismissal of the appeal in this case.
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