2017 (7) TMI 832 - HC - Customs

Time limitation - condonation of delay - the appeals initially, though filed in a letter format, were presented within the period of limitation. However, upon the error being pointed out to the appellants, the appeals were filed in the prescribed format, albeit, beyond the original period of limitation, but, within the condonable period i.e., within 90 days from the date of receipt of the order - whether or not, the appeals which were lodged by the appellants within the condonable period, i.e., beyond the period of limitation of 60 days, but, within the period of 30 days thereafter, could be rejected, on the ground that when the pre-deposit of 7.5% of the penalty was made the condonable period had already expired? Held that - The proviso to Section 128 (1) of the 1962 Act, empowers the second respondent to adjudicate upon an appeal filed beyond the period of 60 days, but, within a further period of 30 days, provided sufficient cause is shown for the delay in presenting the appeal. Section 129 E (i) on the other hand, provides that the second respondent shall not entertain any appeal under sub-section (1) of Section 128, unless the appellant has deposited 7.5% of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an Officer of Customs, lower than the rank of Commissioner of Customs. A plain reading of the expression, presenting which obtains, in proviso to Section 128 (1), as against entertain which obtains, in Section 129 E, would have us, come to the conclusion that as long such appeal is presented, i.e., lodged, within the prescribed period of limitation including the condonable period, it cannot be dismissed solely on the ground that the mandatory pre-deposit of duty or penalty or both, was not made, before the expiry of the period of limitation, prescribed under Section 128 (1) read with the first proviso of the 1962 Act. Circular dated 14.10.2014, sensu stricto applies only vis-a-vis appeals filed with the Tribunal. Therefore, according to the procedure prescribed in the said Circular, the appellants are required to be given, at least three opportunities for processing necessary evidence of having made the prescribed mandatory pre-deposit. The second respondent could not have dismissed the appeals, on the ground that the prescribed mandatory pre-deposit was made, beyond the condonable period - appeal allowed - decided in favor of appellant.

Summary

Issues Involved:
1. Applicability of Limitation Period
2. Requirement of Mandatory Pre-deposit
3. Interpretation of 'Presentation' and 'Entertainment' of Appeals
4. Validity of Appeals Filed in Improper Format
5. Procedural Compliance with Circulars and Statutory Provisions

Issue-wise Detailed Analysis:

1. Applicability of Limitation Period:
The primary issue was whether the appeals lodged by the appellants beyond the 60-day limitation period but within the additional 30-day condonable period could be rejected solely because the mandatory pre-deposit of 7.5% of the penalty was made after the condonable period had expired. The court noted that the appeals were initially filed in an improper format within the limitation period and later corrected within the condonable period. The court emphasized that the appeals should not be dismissed solely on the ground that the mandatory pre-deposit was made after the condonable period, provided the appeals were lodged within the prescribed period of limitation, including the condonable period.

2. Requirement of Mandatory Pre-deposit:
The court examined the relevant provisions of the Customs Act, specifically Section 128(1) and Section 129E(i). It was concluded that the appeals could be entertained if they were lodged within the limitation period or the condonable period, even if the mandatory pre-deposit was made later. The court harmoniously construed the provisions and held that the appeals should not be dismissed solely on the ground of the delayed pre-deposit.

3. Interpretation of 'Presentation' and 'Entertainment' of Appeals:
The court distinguished between the terms 'presentation' and 'entertainment' of appeals. 'Presentation' was interpreted as the lodgement of the appeal, while 'entertainment' was interpreted as giving attention or consideration to the appeal. The court concluded that as long as the appeal was presented within the prescribed period, it could not be dismissed solely due to the delayed mandatory pre-deposit.

4. Validity of Appeals Filed in Improper Format:
The appeals were initially filed in a letter format and later corrected to the prescribed format. The court noted that the initial filing was within the limitation period, and the correction was made within the condonable period. Therefore, the appeals should be considered valid and not dismissed on technical grounds.

5. Procedural Compliance with Circulars and Statutory Provisions:
The court referred to the Circular dated 14.10.2014, which mandates giving at least three opportunities to the appellants to produce evidence of the mandatory pre-deposit before taking coercive measures. The court suggested that this procedure should be followed even for appeals before the Commissioner of Customs (Appeals-I) to address the concerns of the Revenue.

Conclusion:
The court allowed the appeals, set aside the impugned judgment of the learned Single Judge, and directed the second respondent to hear the appeals on merits. The court emphasized that the appeals should not be dismissed solely on the ground of delayed pre-deposit, provided they were lodged within the prescribed period, including the condonable period. The court also highlighted the importance of procedural compliance with the relevant circulars and statutory provisions.