2021 (9) TMI 592 - AT - Customs

Condonation of delay in filing application - delay on the ground that the impugned order was not served upon the appellant and that it is lying in the file of the Department after the envelope was returned by the postal authorities - Revocation of Customs Brokers License - HELD THAT - Under section 129A(3) of the Customs Act 1962 Customs Act , every appeal has to be filed within three months from the date on which the order sought to be appealed against is communicated to the party preferring the appeal. It was, therefore, imperative for the appellant to have specifically stated the date on which the order was communicated to the appellant. Even in the short synopsis filed by the appellant at the time of hearing of the delay condonation application, the appellant has not disclosed the date on which the order was communicated to him and all that has been stated is that he was given a photocopy of the impugned order much after he had handed over the application dated August 17, 2016 to the concerned official. Even otherwise, it is evident from the said application that the appellant was aware on August 17, 2016 that an order had been passed on March 15, 2016 by the Commissioner after the personal hearing was conducted on March 8, 2016. Thus, when the appellant, even according to his own statement, was aware that an order had been passed on March 15, 2016, then the appellant should have taken immediate steps to obtain the order so that the appeal could be filed within the three months from the said date, but as it transpires the appeal was actually filed on October 25, 2019 after a period of almost three years and two months. It is apparent that the appellant was not interested in pursuaning the matter and infact it was only in 2019, and that too after the period for which the licence was granted expired on November 10, 2017, that this appeal was presented. The request made by the learned Counsel appearing for the appellant for inspection of the records produced by the Department was not accepted for the reason that the learned Counsel for the appellant wanted to conduct a roving enquiry - it has been found that the file does not contain the original order sent to the appellant. It is for the appellant to explain the delay in filing the appeal on the basis of facts which are in his knowledge. The delay condonation application, therefore, deserves to be rejected as the appellant has not been able to satisfy that the appellant was prevented by sufficient cause from filing the appeal within the stipulated time. It is, accordingly, rejected - appeal dismissed.

Summary

Issues Involved:
1. Delay in filing the appeal.
2. Service of the impugned order on the appellant.
3. Inspection of departmental records by the appellant.

Issue-wise Detailed Analysis:

1. Delay in Filing the Appeal:
The appellant filed an appeal on October 25, 2019, against an order dated March 15, 2016, issued by the Commissioner of Customs, revoking the appellant's Customs Brokers License. The appeal was filed almost three years and seven months after the order, beyond the statutory period of three months stipulated under Section 129A(3) of the Customs Act, 1962. The appellant sought condonation of this delay, claiming non-receipt of the original order and asserting that it was lying in the department's file after being returned by postal authorities. However, the tribunal found this claim incorrect as departmental records indicated the order was sent by speed post and did not return undelivered. The appellant's statements were deemed vague, lacking specific dates of requests or visits for obtaining the order. The tribunal emphasized that the appellant, being a Customs Brokers License holder, should have been aware of the procedural requirements and remedies available. The delay condonation application was ultimately rejected as the appellant failed to substantiate that he was prevented by sufficient cause from filing the appeal within the prescribed time.

2. Service of the Impugned Order on the Appellant:
The appellant contended that the impugned order was never served and that he received only a photocopy after submitting an application on August 17, 2016. The departmental records, however, showed the order was sent to the appellant's two declared addresses by speed post and did not return undelivered. The tribunal noted that the appellant was aware of the order as early as August 17, 2016, but failed to take timely steps to obtain the order and file the appeal within the statutory period. The tribunal concluded that the appellant's claim of non-service was unsubstantiated and that the delay in filing the appeal was not justified.

3. Inspection of Departmental Records by the Appellant:
The appellant requested permission to inspect the departmental records, suspecting tampering by customs officials. The tribunal denied this request, stating that the inspection was sought for a roving enquiry rather than for substantiating specific claims. The tribunal had summoned the records solely to verify the appellant's claim that the order was lying in the department's file, which was found to be incorrect. The tribunal emphasized that it was the appellant's responsibility to explain the delay based on facts within his knowledge, which he failed to do.

Conclusion:
The tribunal rejected the delay condonation application, finding no sufficient cause for the delay in filing the appeal. Consequently, the appeal was dismissed. The tribunal's decision underscored the importance of adhering to statutory timelines and the necessity for appellants to substantiate claims with specific and credible evidence.