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2017 (5) TMI 444 - HC - CustomsNatural justice - condonation of delay - petitioner carried out re-packing of Muriate of Potash (MOP) on behalf of the exporters, who allegedly exported the said MOP to Malaysia - It is the case of the petitioner that without granting opportunity of personal hearing in the matter and without properly considering or giving his findings on the written submissions made by the petitioner, the third respondent vide imposed penalty of ₹ 3,00,000/- on the petitioner u/s 114(i) of the CA, 1962 - whether the order dated 14.10.2015 passed by the second respondent Commissioner (Appeals) rejecting the application for condonation of delay suffers from any legal infirmity warranting interference? Held that - On a plain reading of the provisions of section 128 of the Act, it is apparent that the same mandates that an appeal should be filed within sixty days from the date of communication of the decision or order that is sought to be challenged. However, in view of the proviso thereto, the Commissioner (Appeals) is empowered to allow the appeal to be presented within a further period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days. Thus, the Commissioner (Appeals) is empowered to extend the period for filing an appeal for a further period of thirty days and no more. Therefore, once there is a delay of more than ninety days in filing the appeal, the Commissioner (Appeals) has no power or authority to permit the appeal to be presented beyond such period. In the application for condonation of delay moved by the petitioner, it has been stated that the petitioner upon receipt of the order-in-original dated 10.10.2014 on or about 7th November, 2014 and the order-in-original dated 20.10.2014 on or about 11th November, 2014, forwarded the same to the Ahmedabad based advocate s office, who advised him to first deposit 7.5% of the penalty amount imposed on the petitioner as a mandatory pre-deposit to prefer appeal before the concerned appellate authority - On a plain reading of section 129E of the Act, it is clear that what the same envisages is that an appeal shall not be entertained unless the appellant has deposited such percentage of duty as specified in clause (i) to clause (iii) thereof, respectively. The section, however, does not say that the appeal shall be accompanied by a challan evidencing payment of pre-deposit or that the appeal cannot be filed unless such payment has been made. The two notices for personal hearing came to be issued to the petitioner, who, however, for the reasons recorded hereinabove, did not appear before the adjudicating authority. On behalf of the petitioner, reliance has been placed on the proviso to sub-section (2) of section 122A of the Act for the purpose of contending that it was incumbent upon the adjudicating authority to grant at least three adjournments and that since only two opportunities were granted to the petitioner, the impugned order is bad as the procedure followed by the adjudicating authority is inconsistent with the statutory provisions. In the absence of any breach of the principles of natural justice or lack of jurisdiction or improper exercise of jurisdiction on the part of the adjudicating authority being made out, when there is an efficacious alternative remedy of appeal before the Appellate Tribunal under section 129A of the Act, the petition deserves to be dismissed as not maintainable. Petition dismissed - decided against petitioner.
Issues Involved:
1. Breach of principles of natural justice. 2. Non-speaking order. 3. Issuance of repeated show cause notices for the same cause of action. 4. Rejection of application for condonation of delay. Detailed Analysis: 1. Breach of Principles of Natural Justice: The petitioner argued that the order-in-original was passed without granting a proper opportunity for a personal hearing, violating the principles of natural justice. The petitioner received two hearing notices at his parents' address, which were forwarded to him late, leaving insufficient time to arrange for his advocate's presence. The petitioner submitted preliminary and final replies but was not granted a personal hearing before the order was passed. The court noted that the first hearing notice was issued on 08.08.2014, fixing the hearing on 19.08.2014, and the second notice was issued on 15.09.2014, fixing the hearing on 25.09.2014. The petitioner did not inform the adjudicating authority to send notices to his Surat address. The court observed that section 122A of the Customs Act, 1962, requires a maximum of three adjournments, but does not mandate that three adjournments must be granted as a matter of course. The adjudicating authority granted three opportunities for a hearing, which the petitioner did not utilize. Therefore, the court held that there was no breach of natural justice. 2. Non-Speaking Order: The petitioner contended that the order-in-original was non-speaking as it did not provide findings on the written submissions. The court examined the order and found that the adjudicating authority had considered the preliminary objections and the final reply submitted by the petitioner, and recorded findings in paragraph 63 of the order. Thus, the court concluded that the order was not non-speaking. 3. Issuance of Repeated Show Cause Notices: The petitioner argued that the second show cause notice was issued for the same cause of action, period, and evidence as the first show cause notice dated 24.01.2011, which culminated in an order-in-original dated 30.03.2012. The court referred to the affidavit-in-reply, which clarified that the second show cause notice covered different shipping bills than the first notice. Therefore, the court held that the second show cause notice was not for the same cause of action. 4. Rejection of Application for Condonation of Delay: The petitioner challenged the rejection of his application for condonation of delay by the Commissioner (Appeals). The court noted that section 128 of the Customs Act allows for an appeal to be filed within sixty days from the date of communication of the decision, with a further condonable period of thirty days. The petitioner's appeal was filed beyond this period, and the Commissioner (Appeals) had no authority to condone the delay beyond thirty days. The court referred to the Supreme Court's decision in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, which held that appellate authorities cannot condone delays beyond the statutory period. Therefore, the court found no legal infirmity in the rejection of the condonation application. Conclusion: The court dismissed the petitions, holding that there was no breach of natural justice, the order-in-original was not non-speaking, the second show cause notice was valid, and the rejection of the condonation application was justified. The court emphasized that the petitioner should have availed the statutory remedy of appeal before the Appellate Tribunal under section 129A of the Customs Act. The petitions were dismissed as not maintainable, with no order as to costs.
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