Per: P.G. Chacko
In this application, the appellant prays for condonation of delay of 120 days said to be involved in the filing of their appeal. The appellant has since filed an affidavit stating that the extent of delay of the appeal is 145 days and not 120 days. Both in the application and the present affidavit, the appellant submits that the delay of the appeal was occasioned by non-co-operation of the CHA. It is submitted that the necessary documents (bill of entry etc.) were not supplied by the CHA to enable the appellant to file the appeal. The appellant is said to be located at Meerut and could not visit the SIIB office at Nhava Sheva for collecting the documents seized by the investigating officers. It is submitted that the delay of the appeal, in these circumstances, was beyond the control of the appellant. The affidavit also claims support from the Hon'ble Supreme Court's judgment in Collector, Land Acquisition vs. Mst. Katiji (1987) 2 SCC 107. The learned counsel has reiterated the above submissions of the party.
2. The learned JDR submits that, against the same order of the Commissioner of Customs, the department has also filed an appeal (C/414/09), which was filed on 23.4.2009. It is submitted that the appellant, if aggrieved by the same order, could have filed cross objections in the department's appeal. It is also submitted that the appellant could have complained against their CHA, which they did not do.
3. We are not impressed with the prayer for condonation of the above delay involved in the filing of the appeal. According to the appellant, they received a copy of the Commissioner's order on 20.2.2009, but could not file the appeal in time for want of documents which, according to them, were in the custody of their CHA. It is submitted that the CHA did not co-operate. There is no evidence of any correspondence between the appellant and their CHA between 20.2.2009 and 14.10.2009 (date of filing of the appeal), nor is there even any mention in this application about the steps, if any, taken by the appellant to recover the documents from their CHA. It is submitted that the appellant requested the SIIB (Import), Nhava Sheva, to supply copies of bills of entry, invoice, shipping bill etc. in September 2009, but no such document supplied by SIIB. In this connection, the learned counsel has referred to SIIB's letter dated 6.9.2009 (signed on 6.10.2009), which indicates that none of the above documents was available with SIIB and, therefore, the party was advised to check with their CHA. However, it appears, the party did not take steps to obtain copies of the necessary documents from their CHA. It appears, the present appeal was filed on 14.10.2009 soon after receipt of SIIB's letter ibid. It is also evident that the department filed appeal No. C/414/09 against the same order of the Commissioner on 23.4.2009. The learned counsel has submitted that a copy of the department's appeal was received some time in September 2009. In answer to a query from the Bench, the learned counsel produces a copy of the relevant notice received by his client from the registry of this Tribunal. This notice is dated 1.7.2009. Obviously, the appellant received a copy of the department's appeal under cover of the above notice dated 1.7.2009. They must have received the document in the first fortnight of July 2009. The counsel's claim that his client received the department's appeal memo only in September 2009 remains unsubstantiated. The law provides a period of 45 days for the filing of cross objections. Where the party received a copy of the department's appeal in the first fortnight of July 2009, they could have filed cross objections against the Commissioner's order within the said period of 45 days, but this was also not done. In this connection, it is pertinent to note that a clear indication of the relevant provision of law was also given in the aforesaid notice dated 1.7.2009. On the whole, the party has not pursued appellate remedy diligently. No explanation to our satisfaction has been stated in the present application, nor in the affidavit, for condonation of the heavy delay of 145 days. In the absence of such explanation, the appellant cannot claim the benefit of the apex court's judgment in Mst. Katiji's case (supra). What was held by the apex court was that the rejection of an application for condonation of delay should not be detrimental to the interest of justice and equity. Obviously, Their Lordships were underlining the need to administer justice and equity in the circumstances of the case. We have already narrated the circumstances of this case, which do not call for condonation of the delay of the appeal.
4. In the result, this application stands dismissed. Consequently, the appeal also gets dismissed as time-barred.