Harish Anil Vasant v. Commissioner of Customs

1. Issue notice.

2. Mr.Satish Kumar,Advocate accepts notice.

3. The question oflaw sought to be urged in this case is whether the Customs,Excise and Service Tax Appellate Tribunal(hereinafter referred to as"CESTAT")was right in rejecting the application seeking condonation of delay,and consequently the appeal preferred by the assessee.

4. The assessee suffered an adverse order by the adjudicating Commissioner on 31.08.2012. It however preferred an appeal on 08.06.2012. In support of the appeal, it filed an application seeking condonation ofdelay which did not spell out the exact time. Besides,there weresome defects in the affidavits sworn in supportofthe application. The 2015:DHC:11853-DB ly revenue had been contending that the appellant had not disclosed its hona fides, and that the other aggrieved party had even approached the CESTAT earlier. In these circumstances,the explanation given by the present appeal thatit had notreceived the certified copy was unconvincing.

5. The CESTAT, in its order, considered the factual matrix and noted that whilst there exists a right ofredressal by way of appeal, it has to be exercised within the time limit specified by the statute. The CESTAT was of the opinion that the recital by the appellant, that he received orders belatedly,did notabsolve him ofthe limitation prescribed. It wasalso ofthe opinion that a litigantofordinary prudence would not prefer to prejudice its interest by approachingthe higherforum belatedly.

6. We have heard counsel for the parties. It appears that whilst the CESTAT-in our opinion correctly-noticed the law and thejudgment of the Supreme Court in Collector of Land Acquisition Anantnag V. Mst. Khatiji 1987(28)ELT 185(SC),it was considerably swayed by the fact that the other litigant had suffered penalty and approached the CESTAT earlier. The appellant has given instances where it addressed several letters to the respondents seeking to be informed about the outcome ofthe proceedings. The revenue had contended that it had dispatched the order of the Commissioner on 04.09.2010 and that there was a presumption of due receipt. During the hearing, it is submitted that the appellant has already deposited ?40lakhs in compliance ofthe order ofthe adjudicating authority and that denial of his right to appeal would prejudice it seriously. The appellant appears to lack locus in its approaching the Tribunal rather belatedly. However, at the same time, this Court is of the opinion that having complied with the adjudicating authority's order, the denial ofthe right to appeal would undoubtedly prejudice the assessee; this is an important factor which cannot be overlooked. Taking note of this circumstance,this Court is ofthe opinion that,on balance,a larger interest of justice lies in condoning the delay occasioned by the appellant in approaching the CESTAT, and in requiring that Tribunal to decide the appeal on its merits.

7. Parties are directed to be present before the CESTAT on 11.02.2015 for further directions towards hearing ofthe appeal and the application of stay preferred by the appellant.

8. The application and the appeal are allowed intheaboveterms. ~[(DRA BHAT,J S.RA JANUARY 30,2015 vld K G'A BA,J