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TMI Blog2017 (5) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... thin a further period of thirty days if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days. Thus, the Commissioner (Appeals) is empowered to extend the period for filing an appeal for a further period of thirty days and no more. Therefore, once there is a delay of more than ninety days in filing the appeal, the Commissioner (Appeals) has no power or authority to permit the appeal to be presented beyond such period. In the application for condonation of delay moved by the petitioner, it has been stated that the petitioner upon receipt of the order-in-original dated 10.10.2014 on or about 7th November, 2014 and the order-in-original dated 20.10.2014 on or about 11th November, 2014, forwarded the same to the Ahmedabad based advocate’s office, who advised him to first deposit 7.5% of the penalty amount imposed on the petitioner as a mandatory pre-deposit to prefer appeal before the concerned appellate authority - On a plain reading of section 129E of the Act, it is clear that what the same envisages is that an appeal shall not be entertained unless the appellant has deposited such percentage of duty as spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to be issued to the petitioner. It is the case of the petitioner that thereafter, the office of the third respondent Additional Commissioner of Customs (Preventive), Jamnagar, issued hearing notice dated 08.08.2014 fixing the date of hearing on 19.08.2014, which was sent/received at the permanent address of the petitioner s parents at Rajkot. The petitioner who has been permanently based in Surat since 2005, on receipt of the notice from his parents, forwarded the same to his Ahmedabad based advocate. The learned advocate, due to short notice, could not act/represent in the matter before the adjudicating authority. Thereafter, another notice of hearing dated 15.09.2014 was once again served at the petitioner s parents address at Rajkot on or about 22.09.2014, fixing the personal hearing on 25.09.2014. Once again, due to the short notice period of fixing the hearing dates, it was difficult for the petitioner to obtain the availability of the petitioner s advocate to appear before the third respondent, whose office is located at Jamnagar. The petitioner s advocate, however, vide letter dated 25.09.2014, filed a reply raising preliminary objections and requested for another date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Limited v. Union of India, 2012 (281) ELT 528 (Guj.), as well as the decision of the Bombay High Court in the case of Khandelwal Laboratories Ltd. v. Union of India rendered on 8th October, 2008 in Writ Petition No.6134 of 2008. It is also the case of the petitioner that the notices for personal hearing were sent to the address of the petitioner s parents and were, therefore, received very late, leaving him with very little time to obtain availability of his advocate to appear before the third respondent on the date of personal hearing, as the office of the third respondent is situated at Jamnagar. It was submitted that the short notices which were issued to the petitioner are also in breach of the principles of natural justice. 3.1 The second limb of the submissions advanced by the learned advocate for the petitioner was that the petitioner had submitted written reply to the show cause notice, however, no findings have been given on the written submissions as to why such contentions did not find favour with the authority. Therefore, the impugned order-in-original is a non-speaking order and stands vitiated on that count also. In support of such submission, the learned advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the delay in filing the appeal before the Commissioner (Appeals) is required to be condoned and the appeal should be directed to be heard on merits. 4. Opposing the petitions, Mr. Chintan Dave, learned Senior Standing Counsel for the respondents, reiterated the contents of the affidavit-in-reply filed on behalf of the third respondent. It was submitted that sufficient opportunities of personal hearing were offered to the petitioner on various dates, viz., 09.05.2014, 19.08.2014, 10.09.2014 and 25.09.2014. It was submitted that the petitioner has also confirmed that he had received notice of personal hearing at his Rajkot address and that despite service of notice, the petitioner had not chosen to appear before the adjudicating authority for personal hearing either in person, or through any authorized representative. It was submitted that since there was no request for directing the notices of personal hearing to other address by the petitioner or for granting subsequent suitable date of hearing during the adjudication, such contention which is raised for the first time before this court, should not be considered. The attention of the court was invited to the findings recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... donation of delay, is just, legal and proper, and does not warrant interference by this court. 4.3 The learned Senior Standing Counsel further submitted that against the impugned order-in-appeal, there is a remedy by way of an appeal under section 129A of the Act before the Appellate Tribunal, and hence, the present petitions are not maintainable and deserve to be dismissed on this ground alone. It was, accordingly, urged that both the petitions being devoid of merits, do not warrant interference. 5. In the backdrop of the facts and contentions noted hereinabove, the first question that arises for consideration is as to whether the order dated 14.10.2015 passed by the second respondent Commissioner (Appeals) rejecting the application for condonation of delay suffers from any legal infirmity warranting interference. 6. A perusal of the impugned order dated 14.10.2015 shows that the Commissioner (Appeals) has taken into consideration the provisions of section 128 of the Customs Act and has observed that the appeals had been filed beyond the extended period of thirty days of actual date of filing of appeal inasmuch as, the appeals have been preferred as late as 116 days and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy sought to be raised by the petitioner is no longer res integra, inasmuch as the same stands decided by the Supreme Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70, wherein the court in the context of section 35 of the Central Excise Act, 1944, which is in pari materia with section 128 of the Act, has held thus: 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that more or less a period of ninety days was consumed in arranging for making pre-deposit of 7.5% of penalty amount. On a query by the court as to why the petitioner had to wait for arranging for the pre-deposit amount, it was submitted that unless a challan evidencing payment of pre-deposit is submitted along with the appeal memo, the appeal memos are not accepted by the respondent authority and hence, it is not possible to file an appeal unless the amount payable by way of pre-deposit is paid. 11. In this regard, reference may be made to the provisions of section 129E of the Act, which read thus: 129E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal, - (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of customs lower in rank than the Commissioner of Customs; (ii) against the decision or ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent authorities insist that the appeal memorandum be accompanied by a challan evidencing payment of pre-deposit. 13. The learned advocate for the petitioners has drawn the attention of the court to a decision of the Supreme Court in the case of Ranjit Impex v. Appellate Deputy Commissioner and another, (2013) 10 SCC 655, wherein, an appeal before the Deputy Commissioner I, Commercial Taxes was preferred by the appellant therein and at the time of presentation, a sum of ₹ 8,52,472/- was required to be deposited as per the calculation made under section 51 of the Tamil Nadu Value Added Tax Act, 2006, but as it was not done, the memorandum of appeal was returned to him. The learned Single Judge had disposed of the writ petition and directed the appellate authority to register the appeal and dispose of the same in accordance with law. In the writ appeal, it was contended that the appellate authority could not have returned the memorandum of appeal on the ground that section 51 used the term entertain and second, the amount that was due to the appellant from the Department was to be adjusted for the purpose of deposit as envisaged under section 51 of that Act. The Div ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a practice is in fact prevailing, namely, that the memorandum of appeal is being returned if the same is not accompanied with the challan evidencing payment of pre-deposit, such conduct on the part of the respondent authorities has no legal basis. The respondent authorities are duty bound to accept the memorandum of appeal if the same is filed in the prescribed form, without insisting upon the challan evidencing payment of pre-deposit accompanying the same. If the appeal comes up for hearing and the pre-deposit is not paid, the Commissioner (Appeals) may refuse to entertain the same and dismiss it on that ground. 15. However, insofar as the present case is concerned, it is not even the case of the petitioner that he had presented the appeal and that the second respondent refused to accept the same unless it was accompanied by a challan evidencing payment of pre-deposit. It appears that the petitioner has proceeded on an assumption that the appeal papers would not be accepted without such challan and has let the statutory period lapse, thereby non-suiting himself as the Commissioner (Appeals) has no power or authority to condone the delay beyond a period of thirty days, even i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r personal hearing came to be issued to the petitioner, who, however, for the reasons recorded hereinabove, did not appear before the adjudicating authority. On behalf of the petitioner, reliance has been placed on the proviso to sub-section (2) of section 122A of the Act for the purpose of contending that it was incumbent upon the adjudicating authority to grant at least three adjournments and that since only two opportunities were granted to the petitioner, the impugned order is bad as the procedure followed by the adjudicating authority is inconsistent with the statutory provisions. 19. In this regard, reference may be made to the provisions of section 122A of the Act, which read thus: 122A. Adjudication procedure. (1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown, at any stage of proceeding referred to in subsection (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that can be granted, but does not say that in every case, three adjournments should, as a matter of course, be granted. If the adjudicating authority does not find sufficient cause, he may not adjourn the proceeding. Therefore, merely because in all three adjournments have not been granted to the petitioner, would not tantamount to breach of the principles of natural justice as alleged. Having regard to the overall facts that have come on record, and more particularly considering the fact that in the present case there were a large number of other co-noticees, the court is of the view that the contention regarding breach of principles of natural justice on account of non-grant of three adjournments, does not merit acceptance. 21. In Automotive Tyre Manufacturers Association v. Designated Authority (supra), the Supreme Court has held that it is well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order is a non-speaking order as it does not record any findings on the submissions made by the petitioner, therefore, cannot be accepted. 24. Another contention raised is that in respect of the same cause of action, for the same period, essentially on the same evidence, a show cause notice dated 24.01.2011 had been issued by the second respondent, which culminated into an order-in-original dated 30.03.2012, whereby the penalty of ₹ 75,00,000/- came to be imposed on the petitioner, against which an appeal is pending before the Tribunal. It has been contended on behalf of the petitioner that repeated show cause notices in respect of the same period and on the same allegation based on the same material, are not sustainable in law. In this regard, from the averments made in the affidavitin- reply, it is evident that the show cause notice dated 24.01.2011 covered certain shipping bills, whereas the present show cause notice pertains to different shipping bills than those covered by the earlier show cause notice. Therefore, it cannot be said that the earlier show cause notice was in respect of the same cause of action. In the light of the above, it is evident that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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