2004 (97) ECC 648 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

New Delhi -- Bench-NB(B)

Shri V.K. Agrawal, Member (T) and Shri P.S. Bajaj, Member (J)

Sharika International

Versus

CC, Mumbai (Aircargo), Sahar

C/COD/42/2004-NB(B), C/S 838/2004-NB(B) WITH Appeal No. C/172/2004-NB(B)

[Arising out of Order-in-Original No. CC-250/2000-Adjudication/ACC dated 21.11.2000 passed by the Commissioner of Customs, Mumbai]

Stay Order No. 277/2004-B
Misc. Order No. 64/2004-B
Final Order No. 527/2004-B, dt. 12.5.2004, Certified on 5.7.2004

Condonation of delay

Inordinate delay of almost 3 years in fling appeal. Once the order is issued by a competent authority, it can be set aside only by a higher forum where the appeal against the said order lies. The applicants have not filed the appeal against the order dated 20.11.2000 within time stipulated in the impugned order. In view of the long delay involved in the present appeal, the decision in the case of Collector of Land Acquisition v. Mst. Katiji, 1987 (13) ECC 27 (SC) does not apply. There is no reason to condone the delay of 1073 days in filing the present appeal.

Application rejected
Appeal dismissed

PRESENT :

Shri Prem Ranjan, Adv. for the appellant.

Shri Vikas Kumr, SDR for the respondent.

Case Cited :

Collector of Land Acquisition v. Mst. Katiji, 1987 (13) ECC 27 (SC) (Followed) ....... [Para 4]

Per : V.K. Agrawal

This is an application by M/s. Sharika International for waiver of condonation of delay of 1073 days in filing the appeal before the Tribunal.

2. Shri Prem Ranjan, learned Advocate, submitted that an advance licence dated 16.2.94 was issued to them having a validity period of 12 months and port of registration at Mumbai; that they applied for change of port of registration from Mumbai to New Delhi and the same was accordingly registered with New Delhi Customs for the purpose of monitoring; that they did not utilise the said licence in full but fulfilled the entire obligations undertaken for availing of the duty-free imports; that they also submitted a certificate from the Range Superintendent regarding non-availment of input stage credit; that the DGFT had also discharged the applicants vide letter dated 14.2.97; that all of a sudden they received a show cause notice dated 26.10.98 from the Commissioner of Customs, Mumbai alleging contravention of provisions of Section 111(o) of the Customs Act consequent to violation of conditions of Notification No. 203/92-CUS as they had availed input stage credit under Rule 57A of the Central Excise Rules; that, subsequently, the Commissioner of Customs passed the impugned Order-in-Original confirming the demand of Rs. 42,88,416 alongwith interest and penalty of Rs. 4 lakh was imposed on them; that as they have been discharged by the DGFT, no action has to be taken by them with regard to the Order-in-Original passed by the Commissioner (Customs); that they have received a notice dated 25.7.03 from the Commissioner of Customs for not making the payment of the duty and penalty imposed on them, they have filed the present appeal. He, further, submitted that the applicants were under the bona fide impression that the Commissioner (Customs) passed the impugned order with the belief that the applicants were registered with the Customs, Mumbai, which was not correct; that since they had informed the Commissioner (Customs) regarding the current position and also the fact that they stand discharged from any obligation, the Order-in-Original would be withdrawn; that in such a situation, delay in filing should not be made a ground for denying justice as courts are to deliver justice and not to perpetuate injustice.

3. Opposing the prayer, Shri Vikas Kumar, learned D.R., submitted that the Order-in-Original dated 21.11.2000 was admittedly received by the applicants on 30.11.2000; that the order has clearly confirmed the duty against them besides imposing the penalty; that if the applicants were aggrieved with the impugned order, they should have filed the appeal before the Appellate Tribunal within time limit of three months of receipt of order as provided in Section 129A of the Customs Act; that no sufficient reasons have been advanced by the applicants for condoning the delay of almost 3 years in filing the appeal.

4. We have considered the submissions of both the sides. The factual position of the order being passed on 21.11.2000 and its receipt by the applicants on 30.11.2000, is not disputed by the applicants. The appeal, filed by them against the said order has been received in this Tribunal on 23.1.2004. Thus, there is an inordinate delay of almost 3 years in filing the appeal. Sub-section (3) of Section 129A of the Customs Act provides that every appeal has to be filed within three months from the date on which the order is communicated to the party preferring the appeal. Sub-section (5) empowers the Tribunal to admit the appeal if it is satisfied that there was sufficient cause for not presenting it within the stipulated period. In the present matter, the applicants have only pleaded that they were under the bona fide impression that order would be withdrawn automatically after they have explained the position that the port of registration was Delhi and they have been already discharged by the DGFT. Once the order is issued by a competent authority, it can be set aside only by a higher forum where the appeal against the said order lies. The Applicants have not filed the appeal against the said order within time stipulated in the impugned order. The reasons advanced by them are not sufficient for condoning the delay of more than 1000 days in filing the appeal. There is no force in their submissions that if the delay is not condoned the justice will be perpetuating. If such a plea is accepted the very purpose of specifying the time limit in any enactment will be of no use. In view of the long delay involved in the present appeal, the decision in the case of Collector of Land Acquisition v. Mst. Katiji, 1987 (13) ECC 27 (SC) : 1987 (28) ELT 185 (SC) does not apply. We, therefore, find no reason to condone the delay of 1073 days in filing the present appeal. We, therefore, reject the application. Consequently, the appeal also stands dismissed.

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