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TMI Blog2015 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... cord, we find some justification in the explanation given by the appellant/importer, he being the sole proprietor. Further, the plea taken by the appellant/importer is acceptable for the reason that it is a case of proper import after assessment by an appropriate officer in the month of June, 2003 and, thereafter, investigation was mooted by the DRI, which culminated in the show cause notice in February, 2005. The appellant has been pursuing the matter from the stage of show cause notice, adjudication, appeal before the Commissioner, further appeal before the Commissioner (Appeals) and, thereafter, before the Tribunal in the first round. On remand by the Tribunal, the appellant/importer diligently pursued the matter before the Commissioner of Customs in the first de novo proceedings and once again on appeal to the Tribunal and subsequent remand order dated 20.10.09, pursued the matter sincerely in the 2nd de novo proceeding before the Commissioner of Customs. In view of the conduct of the appellant/importer in showing his bona fide by making the deposit as ordered by this Court reaffirming his sincerity in pursuing the matter, we find that his intention in pursuing the appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plotter under Bill of Entry No.323944 dated 5.6.03 and cleared the goods availing the benefit of exemption under notification No.21/02 dated 1.3.02, whereby countervailing duty, cess and SID were not levied. The DRI took up investigation of the matter after a period of time and after investigating the matter, issued a show cause notice dated 28.2.05 calling upon the importer/appellant to pay differential duty, but for the benefit of the above notification, and such show cause notice was issued in terms of proviso to Section 28 (1) of the Customs Act. The show cause notice, inter alia, demanded for confiscation of the imported goods, penalty and interest. 3. The Joint Commissioner of Customs passed an order at the first instance on 29.11.05 confirming the demand made in the show cause notice together with interest and penalty. In the appeal filed by the appellant/importer, the Commissioner (Appeals) confirmed the order of the Joint Commissioner by order dated 27.6.06. The appellant/importer pursued the matter before the Tribunal and the Tribunal, by order dated 30.4.07, set aside the order of the appellate authority vide a common order relating to several imports and remanded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s set out in detail in the affidavit filed in support of the application for condonation of delay, together with other facts of the case, as found in paragraph-21, are extracted hereunder for better clarity :- 21. Similarly it is just and necessary that the delay in filing the appeal be also condoned. The delay is neither willful nor wanton but for the bonafide reason of me not having had personal knowledge of the impugned order. In fact I came to know about the order only on 30.01.2013 and got hold of a physical copy of the order from the indenting agent on 31.01.2013. there are no records in my office showing receipt of the original of the order in 2010. The financial year 2010 and 2011 was very bad for my business, which was hit hugely by the recession in the economy. I visited Haj on a pilgrimage in November 2010 for prayers inter alia seeking God's blessings for resurrection and revival of my business. Key staff members who managed the affairs of my business deserted me and left my concern in November and December, 2010 just when I was not present. It is likely that even if the order had been dispatched by the respondent, my office staff had misplaced. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was in a quandary. On a perusal of the materials available on record, we find some justification in the explanation given by the appellant/importer, he being the sole proprietor. Further, the plea taken by the appellant/importer is acceptable for the reason that it is a case of proper import after assessment by an appropriate officer in the month of June, 2003 and, thereafter, investigation was mooted by the DRI, which culminated in the show cause notice in February, 2005. The appellant has been pursuing the matter from the stage of show cause notice, adjudication, appeal before the Commissioner, further appeal before the Commissioner (Appeals) and, thereafter, before the Tribunal in the first round. On remand by the Tribunal, the appellant/importer diligently pursued the matter before the Commissioner of Customs in the first de novo proceedings and once again on appeal to the Tribunal and subsequent remand order dated 20.10.09, pursued the matter sincerely in the 2nd de novo proceeding before the Commissioner of Customs. Thereafter, as rightly pointed out by the learned counsel for the appellant/importer, when the order came to be passed by the Commissioner in the 2nd de novo p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross negligence on the part of the Counsel or litigant is to be taken note of. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. (vii) The Concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former Doctrine of Prejudice is attracted, whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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