Commissioner of Customs v. Shrisurajprakash Dua

1 Thepresentappeals are directed againstthe orders passedbythe Central Excise and Service Tax Appellate Tribunal(CESTAT),Principal Bench, v/ New Delhiincustomsappeals preferred bytherespectiveRespondents. The particulars ofthe impugned orders in respect ofeach ofthese cases are as follows: S.No. Appeal No. Date ofImpugned Order Respondent

1. CUSAA 217/2019 12.07.2017 Shri Suraj Prakash Dua

2. CUSAA 213/2019 12.07.2017 Shri Ashwani Dua

3. CUSAA 214/2019 03.07.2017 Shri Ashok Kumar Jha

4. CUSAA 215/2019 03.07.2017 Sh.Rakesh Arora

5. CUSAA 216/2019 12.07.2017 M/S G N International

6. CUSAA 219/2019 09.10.2017 Surinder Goyal, C/0 Kshitiz Impex Pvt. Ltd.

7. CUSAA 221/2019 09.10.2017 Disha Overseas Pvt. Ltd 8 CUSAA 222/2019 09.10.2017 Kshitiz Impex Pvt. Ltd.

2. Alltheseappealshavebeenfiled with applicationstoseekcondonationof delay which is in the range of around 486 days. Replies to the delay applications seeking condonation ofdelay has been filed in some ofthese appeals i.e. CUSAA 219/2019,CUSAA 221/2019 and CUSAA 222/2019. The submission oflearned counsel for the Appellant is that in respect of similar impugned orders passed by the Tribunal, the Commissioner of Customs had preferred appeals before this Court which were decided m a batch,on03.08.2018titled asPrincipalCommissionerofCustoms v. Col. Sanjeev Sethi and other connected matters. Learned counsel for the (p Appelantsubmitsthat v.de order dated 03.08.2018.the Courtallowed the appealsfollowingtheearlierdecisionofthisCourtinForechIndiaPvt.Ltd.

V. CommissionerofCustoms,InlandContainerDepot,Tughlakabad,New

Delhi,[CUSAA67/2017]decidedon 13.12.2017,therebygivingadirection to the CESTAT to independently apply its mind to the question of jurisdiction and decide the appeals on merit, including the aspect of imposition ofpenalty,ifany. The submission oflearned counsel for the Appellant is that there are about500 such appeals which have been filed from time to time,after obtaining the requisite sanction. Learned counsel for the Appellant submits that no prejudice would be caused to the Respondent if this Court directs the CESTAT to itself undertake the determination- including ofthe question ofjurisdiction and other related matter,ratherthanrequiringthe Adjudicating Authoritytodosointermsof the impugned order.

3. Learned counsel for the Respondents, however opposes the prayer for condonation ofdelay on the ground that the same is substantial. He also relied upon the order passed by the Supreme Courtin the caseofState of Bihar& Ors.v.DeoKumarSingh andOrs.SLP(C)DairyNo.13348/2019 decidedon09.05.2019.whereintheSupremeCourtrejectedasimilarpleato seek condonation ofdelay of728 days.In thatcase as well,the delay was soughtto be condoned on the premisethat the SLP had been filed"after obtainingallsanctionsfrom the respect,ve departments"which"took ume,0receivetheaffidavitandvakalatnamafrom theconcerneddepartment.

4. The aspectofcondonation ofdelayhastobe viewed inthe lightofthe explanation fiimished by the Appellant, as also in the context of the prejudice which would be caused to the Respondent,in case the delay is condoned. As noticed hereinabove.orders ofsimilar namre passed by the CESTAT were not accepted by the department,and several other appeals werepreferred inthe year2018itself. Thesamehavebeenallowedbythis Courtas early as on 03.08.2018.

5. The departmenthas been preferring such like appealsfrom.time to time, and this Court has consistently been setting aside the orders passed by the CESTAT withthedirectiontotheCESTATtoindependentlyapplyits mind tothe questionofjurisdiction,andto decidetheappealson merit,including the aspectofimposition ofpenalty. Theeffectoftheorderspassed bythis Courtin earlier appeals,setting aside similarimpugned ordersis thatrather than the Adjudicating Authority,it is the CESTAT itselfthat would now undertake the required exercise. Pertinently, it were the appeals of the assessees/Respondentson whichtheimpugned order hadbeen passed. The effectoftheimpugnedorderistoawaitthedecisionoftheSupremeCourtin MangUImpexLimUedv. UnionofIndiaandthenthecaseistobedecided onmerits. Thiswoulddelaytheproceedings,andthesamewouldneitherbe ^,ntheinterestoftheRevenue,norintheinterestoftheassessee.

6 We are of the view that in these circumstances,the decision in Deo KumarSingh(supra)isnotattracted. Wethereforerejecttheobjectionof the Respondents to the condonation ofdelay,and accordingly,allow the applicationsseekingcondonationofdelayandcondonethesame.