2022 (12) TMI 322 - HC - Customs

Condonation pf delay in filing appeal - approaching a wrong forum, (revisional forum), instead of the appellate forum - appellant under a bonafide belief had filed Revision Application before Revisionary Authority - HELD THAT - The appellant has made out a case of sufficient cause for condoning the delay. It is apparent from the record that the appellant, on legal advise, preferred a revision application before the Central Government under the provisions of Section 129DD of the Customs Act. Appellant prosecuted the said revision application before the Revisional Authority until order dated 7th December 2021 was passed by the Revisional Authority, which is, without entering into the merits of the matter, holding that it had no jurisdiction to proceed with the revision application. It is only after the order of rejection of the revision application passed, the appellant obtained a certified copy thereof on 13th December 2021 and lodged Appeal before the CESTAT on 12th January 2022, along with the concerned application for condonation of delay, setting out therein the facts and circumstances under which the appeal came to be filed beyond the period of limitation. This itself would constitute sufficient cause under Section 129A(5) of the Act. The reasons given by the appellant in approaching a wrong forum, i.e. the revisional forum, instead of the appellate forum are sufficient cause for condoning the delay in filing appeal before the CESTAT. The impugned order is set aside - appeal allowed.

Summary

Issues involved:
Appeal against delay in filing under Customs Act, 1962.

Analysis:
1. The appeal was filed under Section 130 of the Customs Act, 1962 challenging the order of the Customs, Excise & Service Tax Appellate Tribunal dismissing the appellant's application seeking condonation of delay of 2,159 days in filing an appeal under Section 129A of the Customs Act, 1962.
2. The substantial question of law admitted for consideration was whether the Tribunal erred in dismissing the Miscellaneous Application seeking condonation of delay when the appellant filed a Revision Application before the Revisionary Authority under a bonafide belief.
3. The appellant's case involved the imposition of a penalty under Section 112(b) of the Customs Act, 1962, and subsequent appeals and revision applications filed before different authorities.
4. The appellant approached the wrong forum by filing a Revision Application before the Central Government under Section 129DD of the Act, believing it to be the correct forum, which was later rejected for lack of jurisdiction.
5. The appellant then filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal seeking condonation of delay, citing unintentional delay due to a bonafide belief in pursuing the revision application.
6. The appellant argued that the principles analogues to Section 14 of the Limitation Act should be applied to condone the delay, citing the need to establish due diligence, good faith, and defect of jurisdiction in prior proceedings.
7. The respondents opposed the condonation of delay, arguing that sufficient cause was not shown by the appellant and that the application lacked facts to demonstrate diligent prosecution of revision proceedings.
8. The Court considered the appellant's case and found that the delay was unintentional, caused by a bonafide belief in approaching the wrong forum, and held that the appellant had made out a case of sufficient cause for condoning the delay.
9. Relying on the judgment in Consolidated Engineering Enterprises case, the Court emphasized the need to advance the cause of justice and exempt a period covered by bona fide litigious activity, thus allowing the appeal and setting aside the order of the Tribunal.
10. The Court directed the Customs, Excise and Service Tax Appellate Tribunal to register the appeal and proceed to hear it on its merits, answering the substantial question of law in favor of the appellant.

This detailed analysis covers the issues involved in the legal judgment, providing a comprehensive overview of the case and the Court's decision.