By TIOL News Service

NEW DELHI, AUG 05, 2013: THE petitioner filed a writ petition before the Delhi High Court against an order in original passed by the Commissioner of Customs, Kanpur. The Delhi High Court converted the writ petition into statutory appeal under the Customs Act, 1962 by order dated November 9, 2009. On September 9, 2010 the respondent Revenue raised an objection about the territorial jurisdiction of that Court. The matter was adjourned at the instance of the petitioner. Then on January 5, 2012 the petitioner withdrew the appeal with liberty to approach the jurisdictional High Court. The Delhi High Court dismissed the appeal as withdrawn with the observation:

"It is for jurisdictional High Court to decide the prayer for waiver/exclusion. However, it does appear that the appellant in the present case had bonafidely filed the appeal in this Court and has been pressing the same, as the Tribunal is located in Delhi."

The petitioner then filed statutory appeal before Allahabad High Court and applied for condonation of delay by seeking the benefit under Section 14 of the Limitation Act.

The Allahabad High Court dismissed the application for condonation of delay and also dismissed the appeal as time barred, observing:

"The appellant was assisted and had the services of the counsel's, who are expert in the central excise and customs cases. They first filed a writ petition, and then without converting it into appeal obtained an interim order. They kept on getting the matter adjourned and thereafter in spite of specific objection taken, citing the relevant case law, which is well known, took time to study the matter. Thereafter, they took more than one year and three months, to study the matter to withdraw the appeal. They took a chance, which apparently looking to the facts in Ketan V. Parekh's case and this case appear to be the practice of the counsels appearing in such matters at Delhi High Court and succeeded in getting interim orders. The Supreme Court has strongly deprecated such practice of forum shopping. In this case also there is no pleading that the writ petition and thereafter appeal was filed in Delhi High Court, under bonafide belief that it had jurisdiction to hear the appeal and that the appellant was pursuing the remedies in wrong court with due diligence. The appellant, thereafter, caused a further delay of 20 days in filing this appeal, which he has not explained.

For the aforesaid reasons, we are of the opinion that the appellant is not entitled to the benefit of Section 14 of the Limitation Act. This appeal is barred by limitation by 697 days, which has not been sufficiently explained by the appellant."

They are in further appeal in Supreme Court.

The Supreme Court observed,

"The very filing of writ petition by the petitioner in Delhi High Court against the order in original passed by the Commissioner of Customs, Kanpur indicates that the petitioner took chance in approaching the High Court at Delhi which had no territorial jurisdiction in the matter. We are satisfied that filing of the writ petition or for that appeal before Delhi High Court was not at all bona fide. We are in agreement with the observations made by the Allahabad High Court in the impugned order. The Allahabad High Court has rightly dismissed the petitioner's application of condonation of delay and consequently the appeal as time barred."

Special leave petition is dismissed with cost of Rs. 25,000/-

(See 2013-TIOL-36-SC-CUS)