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TMI Blog2005 (1) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order, penalty of Rs. 1,00,000/- was imposed on the applicants. They paid the penalty and did not file any appeal. It was argued that after three years when a criminal complaint was filed before the Magistrate at Jaipur, the applicants have filed this appeal in view of the position that if the applicants succeed in this appeal then the criminal prosecution would not survive. 3. It was argued that the Supreme Court in the case of State of Nagaland v. Lipok AO, reported in 2005 (183) E.L.T. 337, in para 10 of the decision, has observed that the proof of sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the Court. What counts is not the length of the delay but the sufficiency of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Why not every hour s delay, every second s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations Pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. In para 13 of the said judgment, reliance was placed on the following:- If the explanation given does not smack mala fides or is not shown to have been put forth as a part of dilatory strategy, the court must show utmost consideration to the suitor. Reliance was also placed on Bombay High Court decision in the case of WWI Cranes Limited v. Krishna Murthy, repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t decision are reproduced below :- 5. It is not disputed that Section 111(m) of the Act has been amended in 1973 by Act No.36 of 1973 but this amendment will not be applicable to the present case. Section 111(m) as it stood before the amendment reads as under:- Any dutiable or prohibited goods which do not correspond in any material particular with the entry made under this Act or in the case of baggage with the declaration made under Section 77 in respect; thereof. And after the amendment Act 1973 this provision now reads like any goods which do not correspond in respect of value or in any particular with the entry made under this Act or in the case of baggage with the declaration made under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, produce to the proper officer the invoice, if any, relating to the imported goods. * * * * * * * * It is in respect of this that Section 111(m) indicated that wherever goods actually imported are different in material particulars than the goods which were shown in the bill of entry or a declaration as contemplated in Section 46 then it will be a breach of Section 111(m). The difference in particulars could be in respect of anything but value, as this sub-clause clearly show that the difference in value could not be made the basis of breach of this sub-clause before the amendment of 1973, when the term value has been introduced into this sub-clause. Since the value was not one of the criteria i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after amendment. Reliance was also placed on the decision of the Tribunal in the case of Vishnubhai P. Patel v. CC, Ahmedabad, reported in 2004 (163) E.L.T. 169 , where delay of 16 months in filing of appeal was not condoned on the ground that the applicant was under bona fide belief that he is not required to file appeal not being sufficient. 5. I have considered the submissions made by both the sides. I find that there is a delay of more than three years in filing of appeal. The only reason given for condonation of delay is that the prosecution has been filed by the department before the Magistrate at Jaipur and if the applicants succeed in the appeal then criminal prosecution will not survive against them. I find that this ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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