2014 (6) TMI 412 - AT - Customs

Condonation of delay - Inordinate delay of 1234 days - Non receipt of order - Difference of opinion - majority order - Denial of drawback claim - whether the COD application is to be rejected by refusing to condone the delay of 1236 days or should be allowed - Held that - both the appellant in this appeal and M/s Braun Textile Processors, had filed revision applications before the Joint Secretary (revision application) and their revision applications were rejected as being filed beyond jurisdiction by a common order dated 07/04/10. The order-in-revision does not indicate that this order had been passed after hearing the appellant and the copy of the same had been despatched to them. In view of this, the appellant s contention that they became aware of the order dated 07/04/10 of the JS (RA) only when the recovery proceedings were initiated has to be accepted. When the COD application of M/s Braun Textile Processors was dismissed by the Tribunal alongwith their appeal, they filed appeal before Hon ble Delhi High Court and Hon ble Delhi High Court vide judgment 2014 (6) TMI 51 - DELHI HIGH COURT has ordered that having regard to peculiar circumstances, the petitioner s appeal before the CESTAT being 2013 (5) TMI 712 - CESTAT NEW DELHI shall be taken up for consideration un-influenced by the question of delay and pending applications, if any, with respect to waiver of pre-deposit shall be first decided by the Tribunal before adjudication upon the merits of the case. Hon ble High Court by this order directed M/s Braun Textile Processors to appear before the Registrar, CESTAT on 25/2/14 for appropriate order to list the appeal and stay application for hearing. Thus, in case of M/s Braun Textile Processors, the Hon ble High Court has set aside the Tribunal s order refusing the condone delay and has directed the Tribunal to hear the stay application and appeal on merits without being influenced by the question of delay. In view of this, in the present appeal also, where the facts and circumstances are identical, the same view has to be taken and the delay of 1236 days has to be condoned - Delay condoned.

Issues Involved:
1. Application for condonation of delay of 1236 days in filing the appeal.
2. Jurisdiction of the appellate authority.
3. Bonafide belief and due diligence in prosecuting the remedy before the wrong forum.
4. Applicability of Section 14 of the Limitation Act.
5. Malafide intent and abuse of process of law.

Detailed Analysis:

1. Application for Condonation of Delay:
The applicant filed an application for condonation of delay of 1236 days in filing the appeal. The delay was attributed to the applicant's initial filing of a revision application before the Joint Secretary, which was later dismissed for lack of jurisdiction. The applicant argued that the delay was neither intentional nor willful but due to reasons beyond their control, including the non-receipt of the dismissal order until 2012.

2. Jurisdiction of the Appellate Authority:
The Customs department issued a show cause notice objecting to the availing of duty drawback by the applicant. The Adjudicating Authority confirmed the notice, and the applicant filed a revision application before the Joint Secretary instead of an appeal before CESTAT. The Joint Secretary dismissed the revision application on the grounds of lack of jurisdiction, stating that the appeal was maintainable before CESTAT.

3. Bonafide Belief and Due Diligence:
The applicant contended that they acted in good faith by approaching the Joint Secretary and were unaware of the correct appellate forum. They relied on the decision of the Hon'ble Apex Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Ms. Katiji and Others, which advocates a liberal approach for condonation of delay. The applicant argued that no prejudice would be caused to the respondents if the delay was condoned.

4. Applicability of Section 14 of the Limitation Act:
The applicant argued that the time spent in prosecuting the revision application before the wrong forum should be excluded under Section 14 of the Limitation Act. They claimed that the delay occurred due to their bonafide belief that the revision application was the correct remedy.

5. Malafide Intent and Abuse of Process of Law:
The Revenue opposed the condonation of delay, arguing that the applicant's actions were not in good faith and that they were aware of the correct appellate forum. The Revenue cited the judgment of the Hon'ble Supreme Court in the case of Ketan V. Parekh Vs. Special Director, Directorate of Enforcement, which emphasized the importance of prosecuting remedies before the correct forum and avoiding forum shopping.

Separate Judgments:
Majority Opinion (Condonation of Delay Allowed):
The majority opinion condoned the delay, emphasizing the need for a justice-oriented approach. They noted that the applicant had filed the revision application within the limitation period and that the delay was primarily due to the non-receipt of the dismissal order. They also highlighted that the Customs department was aware of the revision application and did not advise the applicant to file an appeal before CESTAT. The majority opinion relied on the principles laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Ms. Katiji and Others, which advocates a liberal approach for condonation of delay.

Dissenting Opinion (Condonation of Delay Rejected):
The dissenting opinion rejected the condonation of delay, arguing that the applicant's actions were not in good faith and that they were aware of the correct appellate forum. The dissenting opinion emphasized that the applicant had engaged in dilatory tactics and had abused the process of law. They cited the judgment of the Hon'ble Supreme Court in the case of Ketan V. Parekh Vs. Special Director, Directorate of Enforcement, which emphasized the importance of prosecuting remedies before the correct forum and avoiding forum shopping.

Final Order:
In view of the majority order, the delay of 1236 days in filing the appeal was condoned, and the COD application was allowed. The appeal and stay applications were directed to be heard on merits.

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