2014 (9) TMI 438 - HC - Customs

Condonation of delay in filing appeal - sufficient reason - Duty Entitlement Pass Book Scheme (DEPB) - misdeclaring the value by over invoicing in order to get higher benefits under DEPB - Held that - In the instant case, the Tribunal observed that it is not satisfied with the reason given in the application filed for condonation of delay. However the Tribunal did not render any finding to whether the reason assigned is either false or incorrect or the reasons smacks of mala fide or it is a dilatory strategy. In the absence of any such finding and by applying the law laid down by the Hon ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy 1998 (9) TMI 602 - SUPREME COURT OF INDIA to the facts of this case, this Court is inclined to accept the explanation offered by the petitioner. As observed earlier, the petitioner does not stand to gain by filing the appeal, belatedly, more so when a heavy penalty has been imposed on the petitioner. It is not the case of the second respondent that the delay is uncondonable, though it may be not for a very long period. As held by the Hon ble Supreme Court the primary function of the Court is to adjudicate the dispute between the parties and to advance substantial justice. This Court is of the considered view that ends of justice would be met only if the delay in filing the appeal is condoned and the Tribunal is directed to consider the application for pre-deposit at the first instance and thereafter, the appeal on merits. - delay condoned - decided in favor of assessee.

Summary

Issues:
Challenge to order rejecting condonation of delay and dismissing the appeal as time-barred.

Analysis:
The petitioner, an exporter, challenged the order rejecting the condonation of delay and dismissing the appeal as time-barred. The dispute arose from alleged misdeclaration of value in shipping bills for export to gain higher benefits under the DEPB Scheme. The Deputy Commissioner imposed penalties, leading to appeals and remand orders. The petitioner's appeal was dismissed due to non-compliance with pre-deposit orders. The Tribunal dismissed the condonation application, prompting the writ petition.

The main issue was whether the delay in filing the appeal should be condoned. The petitioner cited reasons for the delay, including financial difficulties and restricted access to business premises due to a debt-related gift deed. The Tribunal found the reasons unsatisfactory, leading to the writ petition challenging this decision.

The court examined the law of limitation, emphasizing that it aims to prevent dilatory tactics without destroying parties' rights. The court noted that the delay in this case was not excessive and accepted the petitioner's explanation for the delay, considering the financial constraints and restricted access to business premises. The court highlighted that the delay did not benefit the petitioner, especially given the substantial penalties imposed.

Referring to a Supreme Court case, the court emphasized that the discretion to condone delay is crucial for substantial justice. The court concluded that the delay should be condoned to advance justice, directing the Tribunal to consider the pre-deposit application and the appeal on merits. The court highlighted the prolonged stay of the demand against the petitioner without a merit-based adjudication, supporting the decision to condone the delay.

In conclusion, the writ petition was allowed, setting aside the Tribunal's order, condoning the delay in filing the appeal, and directing the Tribunal to consider the pre-deposit application within a specified timeframe. No costs were awarded, and the connected miscellaneous petition was closed.