9911796707
TMI Blog2002 (3) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods under import are project cargo, the original case file containing the essential documents (viz. the Bill of Entry copies original, duplicate, triplicate) were to be traced from section like EPCG, Group 5A, Refunds, Appeals unit, Review Unit of Custom House, to find out the truth of the contention of the importer. 2. While in the case of MICO Industries Ltd., the Asstt. Commissioner (Review Cell) has sought for condonation of 86 days by stating as follows :- The impugned order of the Commissioner (Appeals) was received in Custom House on 15-3-2001. The appeal ought to have been filed on or before 14-6-2001. The reason for the delay is considerable time has been spent to trace out the original documents and preparation of appeal which is purely administrative in nature and it may be condoned please. 3. The rest of the applications is common wherein they have cited the usual judgments as cited in all similar applications being filed by the Commissioner of Customs every time when there is a delay in filing the appeal. We notice that the Commissioner of Customs has got this stereo type applications to be filed through their sub ordinate officers as either through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 DAYS DC (RCO) 20-2-2001 20-2-2001 1 DAY DC (REFUNDS) 20-2-2001 20-2-2001 1 DAY DOS (REFUNDS) 21-2-2001 2-4-2001 41 DAYS DOS (RC) 2-4-2001 2-4-2001 1 DAY EO (RC) 2-4-2001 2-4-2001 1 DAY AO (RC) 2-4-2001 3-4-2001 2 DAYS DC (RC) 3-4-2001 3-4-2001 1 DAY AO (RC) 3-4-2001 17-4-2001 15 DAYS DC (RC) 17-4-2001 17-4-2001 1 DAY JC (RC) 17-4-2001 30-5-2001 3 DAYS DOS (RC) 30-5-2001 31-5-2001 2 DAYS AC (RC) 31-5-2001 31-5-2001 1 DAY AC (RC) 31-5-2001 11-6-2001 12 DAYS COMMIR. 11-6-2001 19-6-2001 9 DAYS APPEAL FILED ON 19-6-2001 The maximum delay (*) of 124 days and 41 days occurred in Refund section and not in review cell. (*) For delay of 124 days of Refunds section Dos (Refunds) had explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17 Received the file from Commissioner to File appeal with Nil COD petition on 27-8-01 14 18 File submitted to EO Review Cell by DA on 27-8-01 NIL 19 Returned the file to DA Review Cell by EO to Submit Nil the same by 24/01 30-8-01 3 20 Submitted the file to EO/AO by DA on 30-8-01 NIL 21 Forwarded the file to AC by AO 30-8-01 NIL 22 Forwarded the file to ADC along with appeal papers NIL with cod petition on 30-8-01 NIL 23 Received the file from Commissioner after signing; NIL the Appeal papers 4-9-01 4 24 Appeal filed on 6-9-01 2 Total Days 175* O-in-A - Order in Appeal EO - Examining Officer/AO - Apprising Officer DA - Dealing Assistant/OS - Office Superintendent * Delay = 81 days (condonation petition already filed) ** The concerned case file which was sent to Refunds Section f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sickness of the concerned person i.e. the partner who was dealing the papers. The Tribunal had not accepted the explanation of delay of 63 days. However, the Hon ble High Court noticed that the partner in charge of the entire affairs was the only person to deal and handle the matter and as he was sick and bedridden and since steps were immediately taken to pursue the appeal on his recovery, the reason given was considered to be sufficient to condone the delay. Ld. DR attempted to press these rulings to seek condonation. 8. Ld. Counsel, Shri S.S. Radhakrishnan opposed the prayer on the ground that in both the appeals, there is no affidavit filed by the Commissioner along with condonation applications. The COD application is also not filed by the Commissioner and there is no direction from the Commissioner to the concerned Dy. Commissioner (Review Cell) or the Asstt. Commissioner (Review Cell) to file applications for condonation of delay. The Commissioner had given authority only to file appeal and not condonation application. It is also brought to our notice that the time-charts do not disclose the person who was incharge of the file and why each section had retained the file f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supported by affidavit by the Commissioner as per law and that the AC had merely stated that the delay was caused in tracing out the original documents and in preparation of appeals which is purely administrative in nature and it could be condoned. The Tribunal held the same to be not sufficient reason and explanation given was not satisfactory and that the negligence was patent on record. Further reference was drawn to the judgment of the Tribunal rendered in the case of Collector of Customs v. Wyeth Labs Ltd. - 1988 (35) E.L.T. 655 wherein also in a similar application on similar cause with delay was not condoned and appeal was rejected as the delay was more than 3 months. 10. We have carefully considered the submissions and have perused the applications seeking condonation of delay and the time-chart and the citations referred to before us. Regretfully, we note that the Bench despite granting several opportunities to the Commissioner of Customs, Chennai to file proper affidavit and give sufficient reasons has not availed of the same and has not responded to the Bench direction on several letters addressed by DR in the matter. Ld. DR has relied on the time-chart which is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on record and the delay of 58 days was not condoned in view of Apex Court s ruling on identical case in not accepting the delay in the case of UOI v. Tata Yodogawa (supra) which applies in toto to the facts of this case also. The Tribunal in similar circumstances had not accepted the reasons given for condonation in the case of CC, Bombay v. Wyeth Labs Ltd., 1988 (35) E.L.T. 655. As noted in the Apex Court judgment in UOI v. Tata Yodogawa, the appellant-Commissioner has not whispered to explain what legal problems in filing the special leave petition arose as noted by the Apex Court on which line a similar application has been filed stating that the delay for a considerable time has been spent to trace out original documents . However, the time-chart indicates that the file has been lying in each department for such a long period without any action being taken clearly discloses the laches and negligence on the part of the Commissioner and as noted by the Hon ble Apex Court the Officers have to be vigilant in filing the appeal within time and not to show laxity and negligence. Where such cause is shown patently and the opportunity given by the Court as in this case is not uti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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