Full Text
HIGH COURT OF DELHI
Date of Decision: 23rd July, 2025
M/S SIDDHI VINAYAK IMPORTERS .....Appellant
Through: Ms. Shikha Sapra and Mr. Sagar Rohatgi, Advocates.
Through: Mr. Anurag Ojha, Sr. Standing Counsel
Mr. Dipak Raj, Advocates.
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed on behalf of the Appellant-M/s Siddhi Vinayak Importers under Section 130 of the Customs Act, 1962 for setting aside the Miscellaneous Order No. 146/2023 dated 30th June, 2023 in defect Diary Appeal No. 50672/2023 passed by the Customs Excise & Service Tax Appellate Tribunal (hereinafter, ‘CESTAT’). Vide the said impugned order, CESTAT has dismissed the appeal filed by the Appellant on the ground of delay.
3. A brief background of the present case is that the Appellant is a partnership firm engaged in the business of import and trade of different varieties of fabric from China and Hong Kong. For the same, the Appellant has entered into various agreements with foreign suppliers. In 2014-2015 post arrival of the goods of the Appellant, the Respondent authority demanded that the Appellant pay the duty in terms of the bills of entry. Thereafter, the Appellant sent several letters dated 25th March, 2021, 30th March, 2021 and 5th April, 2021 seeking amendments of bills of entry in terms of the benefit provided in the Notification No. 30/2004-CX dated 9th July, 2004. However, vide a letter dated 23rd July, 2021 the Deputy Commissioner of Customs, New Delhi rejected the request of the Appellant in the following terms: “In this regard, on perusal of the Bills of Entry, it is informed that the consignment covered under said Bs/E have been out of charged. Therefore, your request can not be considered as the self -assessment has attained finality and as рer Section 2(2) "Assessment" includes self-assessment. The goods have already been out of charge and as per Apex Court’s Order dated 18.09 2019 in Civil Appeal Nos.293 & 294 in the matter of M/s IТС Ltd. Vs С.С.Е, Kolkata-IV, wherein it was ordered that the re-assessment is be done subject to outcome of an appellate order.”
4. Aggrieved by the same, the Appellant preferred an appeal against the rejection letter before Commissioner of Customs (Appeals), which, vide order dated 29th March, 2022 directed the following: “5.[5] Therefore, I find that the assessing authority has correctly rejected the request оf the Appellant to amend the impugned Bills оf Entry under Section 149 оf the Customs Act 1962 and merits no interference."
5. This order of the Commissioner of Customs (Appeals) was appealed by the Appellant herein before the CESTAT, which dismissed the appeal on grounds of delay. The relevant portion of the impugned order is extracted hereunder: “The advocate for the appellant causing appearance submits that there is delay of 273 days as the order was received on 7 April 2022 and the appeal was filed оn 5 April 2023. The reason given is that the advocate appointed bу the appellant kept him in dark by assuring that the said appeal had been filed bу him. After no reply from the said Advocate, the appellant then appointed the current Advocate to file the present appeal. The learned Authorized Representative on the other hand submits that party is in а habit in indulging in dilatory tactics and previously also at the stage of adjudication it had filed the reply after delay of 6 to 7 уеаrs. Considered, we find that the delay of 273 days in the overall facts of the case is not adequately explained and the considerable delay fоr which general explanation cursorily given bу the раrtу without explaining each day delay is not sufficient, considering quantum of delay involved. The same was required to be explained either on each day basis оr in а composite manner to show at least sufficient alacrity and diligence in pursuing legal remedy even when а private litigant раrtу and state аrе treated on same footing. Reliance in this regard is placed on 2015 (320) E.L.T 412 (Del.) in Union of India vs.
6. The case of the Appellants is that there is no gross negligence on behalf of the Appellant in filing the appeal. The delay was attributed to change of Counsel and other procedural aspects. Hence, the delay ought to be condoned.
7. The admission of this appeal is opposed by ld. Counsel for the Respondents on the ground that the delay is not condonable. It is submitted that Section 129A(3) of the Customs Act, 1962 provides that any appeal preferred under the provision, shall be filed within three months from the date on which the order being appealed is communicated to the person or authority filing the appeal.
8. The Court has considered the facts presented as also the submissions. A perusal of Section 129A(5) of the Customs Act, 1962 would show that after the expiry of relevant period prescribed under sub-Section 3, if there is sufficient cause, the filing of the appeal can be permitted. Section 129A(5) of the Customs Act, 1962 is extracted hereunder for a ready reference: “The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.”
9. This Court vide order dated 11th December, 2024 in CUSAA 5/2024 titled, M/S OVT India Private Limited v. Commissioner of Customs has discussed the provisions in this regard and has held that if there is reasonably sufficient cause shown for condonation of delay, the matter ought to be heard on merits. The relevant portion of the said order is set out below:
the following order. (i). The classification of goods under importation as self-assessed under different CTH is rejected and the individual items are re-assessed under CTH as given in Annexure-A of the notice. (ii). The benefit of Customs notification 50/2017-Cus dt. 30.6.17 (Sl. No.510) is denied to the imported goods as per details in annexure A of the notice. (iii). The importer is held liable to pay additional duty of Rs. 1,59,74,734/- (Rupees one crore fifty nine lakh seventy four thousand seven hundred thirty four only) as per details in annexure A of the notice under section 28(1) of Customs Act,
1962. (iv). The importer is held liable to pay interest under section 28AA of Customs Act, 1962 from the date of presentation of bill of entry as per annexure A, till the date of actual payment. (v). The imported goods are not held liable to confiscation under section 111(m) of Customs Act, 1962. (vi). No penalty is levied under section 112 of the Customs Act, 1962. (vii). A penalty of Rs.4,00,000/- (Rupees Tour lakh only) is levied under section 117 of Customs Act, 1962.”
5. It is seen that the adjudicating authority’s order deals with classification of the goods and an additional duty of approximately Rs. 1.59 crores has been directed to be paid including interest and penalty of Rs. 4 lakhs have also been levied. Considering the nature of the quantum of duty that has been imposed upon the Petitioner and the reasons given for condonation of delay, this Court is of the opinion that the Petitioner deserves to be heard on merits. The Court is inclined to condone the delay.
6. Accordingly, the delay is condoned subject to payment of costs of Rs.[1] lakh to the Department. If the costs are deposited within four weeks, the matter shall be listed before the CESTAT on 23rd January, 2025.
10. Further, the Supreme Court in the judgment M/s J.M. Ramachandra and Sons v. Customs Excise & Gold (Control) Appellate Tribunal & Anr. [ILR (2001) II Delhi 405] while condoning delay in similar facts and circumstances, inter alia, observed that the Tribunal ought to apply its mind in such matters. In cases where there is no deliberate attempt by the party to delay the matter and there is no case made out for culpable negligence or lack of bona fides, the Courts ought to have a liberal view. The Supreme Court further held that in such cases, the term ‘sufficient cause’ must be considered with pragmatism in justice oriented approach rather than technical detection by sufficient cause for explaining every day’s delay. The relevant portion of the judgment is extracted hereunder:
under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain's case (supra), it was held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned. In O.P. Kathura v Lakhmir Singh (dead) AIR 1984 SC 1744, it was held that if the refusal to condone the delay results in grave miscarriage of justice it would be a ground to condone the delay. Delay was accordingly condoned.
17. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable off removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. These views were highlighted by the Apex Court in State of Haryana v. Chandra Mani 1996(1) AIR SCW 1672.
18. We find that there is no finding recorded by the Tribunal that there was any deliberate attempt in delaying the matter or that there was culpable negligence or there was lack of bona fides. In fact, except barely saying that there was no justifiable delay, reasons for such conclusions have not been indicated. Reasons constitute heart beat of every order. If there is no reason, there is no life in the order. Looked at from that background we find that the Tribunal's order refusing to condone the delay is not appropriate. Explanation offered by petitioner cannot be said to be hollow or fanciful. The same has not been found to be false. The delay deserved condonation, which we direct. Accordingly, we set aside the order of the Tribunal and direct it to hear the appeal on merits, if it is otherwise free from defects. It is needless to say that we have not expressed any opinion on the merits of issues involved. Writ petition is allowed to the extent indicated.”
11. In the present case, no case for gross negligence, deliberate inaction or lack of bona fides of the Appellant has been made out.
12. In view thereof, the delay in filing the appeal before the CESTAT is condoned, subject to payment of Rs. 50,000/- as costs to the Respondent Department. The appeal of the Appellant before the CESTAT is restored to its original number in defect Diary Appeal No. 50672/2023.
13. Let the appeal now be adjudicated by CESTAT on merits.
14. The costs shall be deposited, within four weeks, with the Respondent Department.
15. List before CESTAT on 10th September, 2025.
16. The appeal is disposed of in these terms. Pending application(s), if any, also stand disposed of.
PRATHIBA M. SINGH JUDGE RAJNEESH KUMAR GUPTA JUDGE JULY 23, 2025/nd/rks