Commissioner of Customs (ICD) v. Gee Dee International & Anr.

1. Allowed subject to all just exceptions. CM No. 7140/2017 in CUSAA 7/2017 and 7144/2017 2017 in CUSAA 8/2017

2. For the reasons stated therein, the delay of 6 days in re-filing the appeals is condoned. The applications are allowed.

CM APPL No. 7138/2017 in CUSAA 7/2017 CM APPL No. 7142/2017 in CUSAA 8/2017

3. These are two applications by the Customs Department seeking condonation of an inordinate delayof 364 days in filingboth the appeals.

4. Both appeals are directed against the common order dated 12^^ January, 2015 passed by the Custom Excise Service Tax Appellant Tribunal (CESTAT) in Customs Appeal Nos. C/46 and 49/2009 - CU(DB).

5. In both applications the explanation offeredfor the delayreads as under:- "2.Being aggrieved with the said impugned order, the appellant challenged the same before the Hon'ble Supreme Court by way of Civil Appeal. However, the same allowed to be withdrawn by the appellant vide Hon'ble Supreme Court's order Dated 27.11.2015 with the liberty to file appeal before the Hon'ble Delhi High Court within one month.

3. That even more delay was occasioned on account of reconstitution of Panel and the file was finally transferred to the present Counsel only in December, 2016.

4. That the certified copy of the order dated 27.11.2015 of the Honble Supreme court was received by the application on 02.05.2016, where after the present appeal is being filed before this Hon'ble Court.

5. That in the process delay about 364 days has occurred in filing the present appeal which isneither intentional nor deliberate but due to the above said bonafide reasons.

6. That if the said delay is not condoned it would lead to irreparable loss totheapplicant interms ofrevenue.

7. That the present application is being filed in the interest of justice."

6. Finding the above explanation to be unsatisfactory this Court, by order dated 21'^ February, 2017, permitted the Appellant to file a better affidavit explaining the delay occasioned in the filing ofthe appeals. Itwas stated by this Court in the said order that: "The affidavit shall clearly disclose the date of the receipt of the CESTAT's order, assigning of the files after the order of the Supreme Court to the counsel for the first time, leading up to the filing ofthe appeal in the present instance."

7. Today, two months later, when the matters were called out, learned counsel for the Appellant stated that despite sending a long e-mail to the Department for the details for preparing the affidavit, he is yet to receive instructions. This itself shows how casually the Department is treating these matters. Additionally it is pointed out by learned Senior counsel for the Respondent that the Supreme Courtin its order dated 27th November, 2015 permitted the Department to withdraw the appeals and approach this Court after recording the statement ofthe Attorney General for India appearing for the Department thatthe appeals would be filed before this Court within one month from that date. Therefore, the appeals were required to be filed CUSAA7&8/2017 ^ Page3of[4] D not later than 26th December 2015 or at the latest the opening day of the Court in January 2016. The computerised log maintained by the Court shows that they were in fact filed on 10th January 2017.

8. The Court finds no reason why more time should be granted for filing a better affidavit particularly when there is already considerable unexplained delay in filing the appeals and more than two months' time was available to the Department sincethe previous hearing, to file a better affidavit.

9. No attempt has been made to give a satisfactory explanation for the inordinate delay, much less every day's delay, in filing the appeals. The Court, therefore, declines to condone the delay of 364 days in filing the appeals.