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TMI Blog2019 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for provisional release has become infructuous. Had the appellant been informed that they could file an appeal against the Order-in-Original, dated 02.05.2018, and that the request for provisional release of vehicle has become infructuous on the date of personal hearing itself, the appellant would not have waited or continued to prosecute the appeal against the provisional release order. Thus, it can be seen that all through till the date of filing the appeal against this impugned order on 04.09.2018, the appellant has been consistently and diligently prosecuting her grievances for release of the vehicle. The Commissioner (Appeals), who while hearing the appeal also has a duty to inform the appellants at the time of personal hearing that when the show-cause notice has culminated in confirming confiscation of the vehicle, the application for provisional release cannot sustain. In not doing so, on the date of personal hearing itself, and thereafter passing the order after one month which was served much later sufficiently explains the reasons for the delay - the period taken by the appellant for prosecuting the grievance before the wrong authority ought to be excluded. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reasons that the proceedings upon the SCN have culminated in passing Order-in-Original, dated 02.05.2018. The appellants, thereafter, filed an appeal before the Commissioner (Appeals) against the order, dated 02.05.2018. The Commissioner (Appeals) vide order impugned herein rejected the appeal as time-barred. Hence this appeal. 2. On behalf of the appellant, the learned Advocate Shri S. Periasamy appeared and argued the matter. He adverted to the findings in the Order-in-Original dated 02.05.2018 with regard to the appellant herein. The appellant is the second wife of Shri R.V.K. Sekar, who was one of the noticee in the proceeding. The vehicle was given to the appellant by her brother Shri V.G. Sekar in whose name the ownership of the Innova Car stood at that time. The vehicle was transferred to her name by her brother so that appellant could earn for her living. On coming to know that she has got a car, her husband Shri R.V.K. Sekar requested for use of the vehicle for a trip to a temple. She later came to know that her husband was arrested with regard to smuggling of gold in her car. She had given her car to her husband only for going to the temple and that she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 02.05.2018. Since they were anxiously awaiting for the decision in the appeal with regard to provisional release pending before Commissioner (Appeals) there occurred delay in filing the appeal against Order-in-Original, dated 02.05.2018 and the appeal could be filed only on 04.09.2018. The delay occurred only for the reason that the appellant was waiting for the outcome of the appeal preferred against the application for provisional release of the vehicle. Since in the Order-in-Original, dated 02.05.2018, no penalties were imposed against the appellant and the amount directed as redemption fine as well as the security being the same, the appellant sought to prosecute the appeal before the Commissioner (Appeals) in the provisional release proceedings. The appellant argued that the time taken for diligently prosecuting the provisional release application may be excluded for computing the period of limitation. The time that has been consumed for prosecuting the appeal before the Commissioner (Appeals) against the application for provisional release ought to have been excluded. To support this argument, the learned counsel relied upon the decision of the Hon ble Apex Court in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order-in-Original, dated 02.05.2018, and that the request for provisional release of vehicle has become infructuous on the date of personal hearing itself, the appellant would not have waited or continued to prosecute the appeal against the provisional release order. Thus, it can be seen that all through till the date of filing the appeal against this impugned order on 04.09.2018, the appellant has been consistently and diligently prosecuting her grievances for release of the vehicle. The argument of the learned counsel that the time taken for prosecuting the appeal before the wrong authority should be excluded, therefore, requires consideration. The Hon ble Supreme Court in the case of M/s. M.P. Steel Corporation (supra) has observed as under:- 52. The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March-April, 1992. The present appeal was filed under Section 128, which Section continues on the statute book till date. Before its amendment in 2001, it provided a maximum period of 180 days within which an appeal could be filed. Time began to run on 3-4-1992 under Section 128 pre-amendment when the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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