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TMI Blog2014 (6) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order dated 06.4.2009 the Applicant alongwith 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 B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; There is another reason why the benefit of Section 14 of the Limitation Act cannot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Braun Textile Processors and they have also referred that they owned Cannon Steels Pvt. Ltd. which long standing company in 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 condonation application. 15. When appellant made unlawful claim of drawback, it followed dilating tactics without active bonafide in prosecuting remedy before Tribunal. In this case the party has themselves admitted that the appeal was filed before the revisionary authority. It is surprising how appellant acted so when it was aggrieved by adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der consideration is more than fifty lakhs rupees. 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 drawback 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application (COD) is rejected appeal as well as stay applications are also disposed off. (Pronounced in Open Court ---------) Per Ms. 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 described 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 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 as to whether 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 and 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 of companies and were very aware of the jurisdiction of the appellate authorities. He has observed as duty draw back of Rs. 6 42 lakhs was involved it cannot be accepted that the appellant would not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy before Settlement Commission was held to be a sufficient cause inasmuch as the same cannot be considered to be no latches or negligence on their part in not filing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al) OR The COD application has to be allowed as held by Member (Judicial) ? Date of Hearing/order - 02/05/2014 Per. Rakesh Kumar :- 39. M/s CIS Exports Pvt. Ltd. 863, Industrial Area A, Ludhiana, 141 003 with Shri R.K. Goyal and his wife Mrs. Geeta Goyal as Directors are exporters of readymade garments. In respect of certain exports of readymade garments made by the appellant company, the Department conducted investigation and on the basis of certain evidence unearthed, alleged that they have wrongly claimed drawback of Rs. 86,60,178/- out of which an amount of Rs. 67,42,724/- had already been paid to them. Accordingly, a show cause notice was issued for denial of this drawback amount and recovery of the amount of Rs. 67,42,724/- already paid to them and also for imposition of penalty on the appellant firm and on the persons involved in the export fraud. One of the noticee who was sought to be penalised is M/s Braun Textile Processors, one of the manufacturers from whom the readymade garments exported are claimed to have been purchased. The show cause notice was adjudicated by the Commissioner vide order-in-original dated 06/04/09 by which the drawback amount of Rs. 67,42,724/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a separate order dated 17/10/13 accepting the appellants plea held that the delay is condonable condoned the delay. On account of difference of opinion between Hon'ble Member (Judicial) and Hon'ble Member (Technical), the following point of difference has been referred to the undersigned for decision :- whether the COD application is to be rejected by refusing to condone the delay of 1236 days as observed by the Hon'ble Member (Technical) or COD application has to be allowed as held by Hon'ble Member (Judicial). 40. Heard both the sides. 41. Shri Rupender Singh, Advocate, the learned Counsel for the appellant pleaded that there was bonafide reason for 1236 days delay, that the appellant under impression that appeal against the Commissioners order in the matter of drawback would lie before Joint Secretary (RA), filed a revision petition before him on 15/07/09, that JS (RA) by an ex-parte order without hearing the appellant and even without intimating the appellant, dismissed the revision application on 07/04/10 for the lack of jurisdiction, that since JS (RA) had passed ex-parte order without intimati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leaded that the appellant's action of filing revision application before the Joint Secretary (RA) against the Commissioner's order dated 06/04/09 cannot be said to be bonafide as in terms of the provisions of the proviso to Section 129A of Customs Act, 1962, it is clear that in the matter of Drawback, revision application lies only against the order passed by Commissioner (Appeals) and that the first proviso is not applicable to the cases where the order impugned is the order-in-original passed by the Commissioner. She also pleaded that the appellant have never cooperated with the Department and had not even appeared before the Commissioner for personal hearing and from the conduct of the appellant it is clear that they have deliberately filed revision application before the JS (RA) to delay the disposal of their appeal. She also emphasised that it is not expected that an assessee who had been denied huge amount of drawback would not be conscious of his rights to the remedy of filing appeal before the right forum when the recovery thereof was sought by the Revenue. She, therefore, pleaded that it is the order passed by Hon'ble Member (Technical), which is the correct order. 43. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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