2019 (1) TMI 783 - HC - Customs

Condonation of 778 days delay in filing the appeal - reasons set out in the affidavit is that the Department was under mistaken belief that a Customs Appeal filed in this Court from an earlier order dated 20th March, 2013 would also govern the impugned order dated 13th March, 2015 passed by the Tribunal - Held that - We find that the affidavit in support does not inspire any confidence. There is no fixing of responsibility for alleged misunderstanding on the part of the Customs Department. We know that the appellant-Revenue regularly files appeal from orders of the Tribunal to this Court and the statute under which they function, provides for the same - here is gross negligence on part of the officers of the Customs in not filing an appeal from the impugned order dated 13th March, 2015 within time and thereafter till 5th December, 2017, when the appeal was filed. Consequently, no occasion to condone the delay of 778 days in filing accompanying appeal arises. The Notice of Motion is dismissed.

Summary

Issues: Condonation of Delay in Filing Appeal

Analysis:
1. Delay in Filing Appeal: The motion sought condonation of a 778-day delay in filing an appeal from an order dated 13th March, 2015, issued by the Customs, Excise and Service Tax Appellate Tribunal. The appeal was eventually filed on 5th December, 2017, missing the original deadline of 20th October, 2015.

2. Reasons for Delay: The affidavit supporting the motion cited a mistaken belief within the Customs Department that a previous appeal filed in 2013 would also cover the 2015 order. However, the affidavit lacked specific details about when this mistake was realized or who within the Department held this belief, which was deemed as casual and insufficient.

3. Opposing Arguments: The respondent, through an affidavit, highlighted their efforts to implement the 2015 order by approaching proper officers on multiple occasions in 2016. The respondent's counsel argued that considering these actions, the delay should not be condoned.

4. Court's Findings: The Court noted the lack of clarity in the supporting affidavit, emphasizing the absence of details regarding the realization of the mistake and the responsible party within the Customs Department. Additionally, the Court highlighted the failure to address the letters sent to the proper officer for order implementation and the significant delay in filing the appeal despite a previous appeal being admitted in 2014.

5. Negligence and Responsibility: The Court criticized the Customs Department for negligence, pointing out the absence of accountability for the misunderstanding leading to the delay. Given the regular appeal filing procedures and the statutory framework in place, the Court concluded that the delay was a result of gross negligence on the part of Customs officers, leading to the dismissal of the motion for condonation of delay.

6. Dismissal of Motion: Ultimately, the Court dismissed the Notice of Motion, citing the lack of confidence in the supporting affidavit, the absence of responsibility attribution for the delay, and the Customs Department's negligence in not filing the appeal within the stipulated time frame, up until its eventual submission in December 2017.