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TMI Blog2013 (12) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... th M/s Braun as well as Shri R.K. Goyal (Total 3 revision applications) filed Revision Applications on 15.7.2009, well within the limitation before the joint Secretary who provisionally accepted the Applications. However, no hearing was provided to the Applicant. 6. The applicant has contended that Ld. Revisionary Authority vide Order No. 95-96/10-CUS dated 07.4.2010 without giving any hearing to the Applicant dismissed the revision applications of the Applicant and Braun Textile Processors on the ground that the applications filed were beyond jurisdiction and not maintainable as the appeal was maintainable before CESTAT. However, they claimed the said order dated 07.4.2010 was not delivered to the appellant nor the Customs till 2012. 7. The applicant contended that the Customs Department was also unaware about the decision of the Ld. Joint Secretary, therefore, the Customs department placed a query to the office of Joint Secretary regarding status of the cases. The Section Officer of the office of Ld. Joint Secretary, on 28.02.2012 replied to Air Cargo Export of Customs that the revision application filed by the Applicant and M/s Braun was dismissed by the Joint Secretary. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be extended to the appellants. All of them are well conversant with various statutory provisions including FEMA. One of them was declared a notified person under Section 3(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 and several civil and criminal cases are pending against him. The very fact that they had engaged a group of eminent Advocates to present their cause before the Delhi and the Bombay High Courts shows that they have the assistance of legal experts and this seems to the reason why they invoked the jurisdiction of the Delhi High Court and not of the Bombay High Court despite the fact that they are residents of Bombay and have been contesting other matters including the proceedings pending before the Special Court at Bombay. It also appears that the appellants were sure that keeping in view their past conduct, the Bombay High Court may not interfere with the order of the Appellate Tribunal. Therefore, they took a chance before the Delhi High Court and succeeded in persuading learned Single Judge of the Court to entertain their prayer for stay of further proceedings before the Appellate Tribunal. The promptness with whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anding company from the year 1995. Their averment that they were not aware that appeal against the Order in Original passed by the Commissioner was to be filed before Tribunal and with bonafide belief they filed application before revisionary authority is inconceivable. Appellant tried to show weakness of Adjudicating Authority submitting that Case was booked by DRI against the company, namely, Cannon Steel where present adjudicator, Shri John Joseph, was Assistant Director, DRI, Cochin. They have filed criminal prosecution against Mr. John Joseph in Ludhiana court. They have pleaded that their case was decided against them by John Joseph due to above prosecution. Such averment has no bearing on the present case for consideration of delay condonation application. 15. When appellant made unlawful claim of draw back, it followed dilatory tactics without bonafide prosecution of remedy before Tribunal. In this case, the party has itself admitted that the appeal was filed before the revisionary authority. It is surprising how appellant acted so when it was aggrieved by adjudication and chose a way to cause prejudice to Revenue making undue gain of draw back. There is no force in submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Four copies of an Appeal to the Appellate Tribunal shall be made in he prescribed form and four copies of the orders in original shall also be attached (out of them one copy shall be verified in the prescribed manner). 19. Conduct of appellant appears to be suffering from vice of dubious practice where Preamble of the impugned order as quoted above is very clear and leaves no doubt about jurisdiction. Appellant was aware about the forum where appeal against Commissioner's order has to be filed. 20. Further it is not expected that an assessee who has been denied a draw back amounting to Rs.67,42,724/- would not be conscious of right to remedy of appeal in a right forum when recovery thereof was sought by Revenue. There was ill motive behind above, to keep the Revenue in dark and prevent recovery. Conduct of appellant proved that it has abused process of law. Therefore Appellant having malafide fails to gain benefit from aforesaid apex Court Judgment. 21. Right of appeal to redress a wrong is a valuable right, but such a right is to be exercised within the statutory period. Time being essential prescription of time limit for exercise of right to remedy is the necessity of civil s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay applications are also disposed off. (Pronounced in open court 5.11.2013) Archana Wadhwa, J. Manmohan Singh, J. PER : Archana Wadhwa 25. I have gone through the order proposed by my learned brother Shri Manmohan Singh, Member (Technical) vide which he has rejected the application for condonation of delay of 1234 days and consequently rejected the stay petition as well as appeal. As I do not find myself in agreement with the stay order, I proceed to record a separate order. 26. The details of factual position already stands detailed in the recorded order of learned Member (Technical). As such, I am not repeating the facts so as to avoid redundancy. 27. The impugned order was passed by the Commissioner on 6.4.09 denying the benefit of duty draw back availed by the appellants. Instead of filing the appeal before Tribunal, against the said order, the appellants filed a revision application before the Joint Secretary within a period of limitation on 15.7.2009. The Joint Secretary provisionally accepted the application but subsequently vide his order dated 7.4.10, dismissed the same on the ground that he was not the competent authority to decide the same and the said order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to file an appeal before Tribunal instead of revision application. Instead they inquired about the status of the revision application thus leading us to believe that even customs considered the filing of revision application as proper. 31. The question required to be decided in the present COD application is that when the revision application was pending before the revision authority and the order of dismissal was subsequently not received by the appellant, whether the provisions of section 14 of Limitation Act have to be held as invokable so as to exclude the time spent in prosecution before the wrong forum. If the said period during which the revision application was pending before the Joint Secretary and the subsequent period during which the revision order was not received by the appellant has to be excluded, it has to be held to be a bonafide and sufficient reason so as to condone the delay. 32. Learned Member (Technical) has observed that the appellant was having a number of group companies and were very much aware of the jurisdiction of the appellate authorities. He has observed that as duty draw back of Rs.67,42,724/- was involved, it cannot be accepted that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to gain the benefit from the Apex Court decision relied upon by them. I find that the Hon'ble Supreme Court in the case of Collector, Land Acquisition Anantnag and another vs MST. Katiji and others reported in [1997 (28) ELT 185 (SC)] has observed that it is a common knowledge that Supreme Court has been making a justifiable liberal approach in matters instituted in the Supreme Court, but the message does not appear to have percolated down to all the other Courts in the hierarchy. As such, by observing that the expression 'sufficient cause' employed by the legislature is adequately elastic to apply the law in a meaningful manner to subserve the ends of justice, laid down the following principles to be followed by all sub-ordinate Courts:- (i) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. (iii) "Every day's delay must be explained" does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals in time. Further, in the case of Shiwalaya Spinning and Weaving Mills (P) Ltd. vs. Commissioner of Customs, Amritsar [2002 (147) ELT 362 (Tri-Del)], the delay of 89 days was condoned on the ground that the appellant was bond fide pursuing the remedy before wrong forum. When we apply the ratio of all above decisions to the facts of the case, we find that the delay has actually occurred on account of pursuing the wrong remedy before the wrong forum. The fact that preamble of impugned order in original clearly mentioned that an appeal to be filed before Tribunal, cannot be considered to be much relevant factor inasmuch even in orders passed by Commissioner (Appeals), usually the same type of preamble is attached. The legal provisions, which require filing of revision application against the order of Commissioner (Appeals) and an appeal before the Tribunal against the order of Commissioner can be mis-interpreted by an assessee, who may not be a legal expert person. 37. Further reliance by the Department on the decision of Hon'ble Supreme Court in the case of Ketan V Parekh vs. Special Director, Directorate of Enforcement [2012 (275) ELT 3 (SC)] is not appropriate. It was admi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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