2019 (2) TMI 463 - AT - Customs

Condonation of delay of 452 days in filing appeal - Jurisdiction - power of Committee of Chief Commissioner to review order - Section 129 D (1) of the Customs Act, 1962 - Held that - The power to review the Order in Original passed by the Commissioner/ Principal Commissioner has been vested to the Committee of Chief Commissioner as per Section 129 D (1) of the Customs Act, 1962 and appeal in the case where the order is reviewed needs to filed within one months from the date of receipt of order of review the by Commissioners. Tribunal has been given power to allow filing of appeal beyond the period as prescribed, provided that appellant is able to show that there was sufficient cause for not being able to file the appeal within prescribed period. Thus as per the above provisions, statutorily prescribed period is of one month for filing the appeal from the dated of receipt of order of review made under Section 129D(1) by the Committee of Chief Commissioner. Thus the appeal was to be filed by 22.07.2017. Since the appeal was actually presented on 18th October 2018, there is delay of 452 days in filing the appeal. The only reason that has been stated by the Appellant in their application is that the delay has occurred on account of the on account of heavy workload in the section dealing with the matter and the transfer of the officers from the section. No other ground has been mentioned for seeking such condonation of delay - this delay in undertaking the statutory obligation caused on the officer authorized by the Committee of Chief Commissioners to file the appeal within period of one month cannot be explained on the ground of heavy workload and transfers of concerned persons. If such a ground is pleaded and admitted, then prescription of statutory time limit for filing the appeal within one month from the date of receipt of order from Committee of Chief Commissioners will lose its relevance. The substantial cause to be shown for delay in presenting the appeal cannot be the work load on the section. Even transfers cannot be reason as the period of delay is nearly 452 days. In the present case, no sufficient cause has been shown for delay in presenting the appeal in present case, as is required to be shown in terms of Section 129D(4) read with Section 129A(5) of the Custom Act, 1962 - In absence of any such justification, there is no merits in the application for condonation of delay - thus, no prejudice is going to be caused to revenue in the matter by dismissing the application for condonation of delay. The Applications for condonation of delay filed by revenue are thus dismissed.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Legality of penalty under Section 114A of the Customs Act, 1962.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The Revenue filed an appeal against the Order in Original No 15/RT/PC/2016-17 dated 27.02.2017, with a significant delay of 452 days. The appellant sought condonation of this delay, citing reasons such as heavy workload, priority cases, officer transitions due to the Annual General Transfer, and inadvertent oversight. The appellant argued that the delay was unintentional and requested the Tribunal to condone it to examine the matter on merit.

The Tribunal noted that the statutory period for filing the appeal is one month from the date of receipt of the review order by the Commissioner, as per Section 129D(1) of the Customs Act, 1962. The appeal should have been filed by 22.07.2017, but it was presented on 18.10.2018. The Tribunal emphasized that heavy workload and officer transfers cannot justify such a substantial delay. The Tribunal referred to the Supreme Court's decision in "Chief Post Master General & Others vs Living Media India Ltd. & Anr," which held that government departments must show reasonable and acceptable explanations for delays and perform their duties with diligence.

The Tribunal concluded that the Revenue failed to show sufficient cause for the delay in presenting the appeal and dismissed the application for condonation of delay.

2. Legality of Penalty under Section 114A of the Customs Act, 1962:
The Revenue contended that the penalty under Section 114A should include both the duty evaded and the interest due on such duty. However, the respondent argued that the penalty should only be equivalent to the duty evaded, as adjudicated by the Tribunal in several decisions.

The Tribunal observed that even if the application for condonation of delay was allowed, the appeal would not have been sustained on merits. The issue raised by the Revenue was already settled against them in a series of decisions, including:
- Bharti Airtel [2012 (286) ELT 270 (T)];
- Mangalore Refinery and Petrochemicals Ltd [2014 (313) E.L.T. 353 (T)];
- B. Suresh Vasudev Baliga [2015 (329) ELT 433 (T-Bang)].

Therefore, the Tribunal dismissed the appeal on both procedural and substantive grounds, concluding that no prejudice would be caused to the Revenue by dismissing the application for condonation of delay.

Conclusion:
The applications for condonation of delay filed by the Revenue were dismissed, and consequently, the appeals were also dismissed. The Tribunal emphasized the importance of adhering to statutory timelines and the necessity for government departments to provide sufficient cause for any delays in legal proceedings.