By TIOL News Service

AHMEDABAD, JUNE 02, 2014: THE Commissioner of Customs, Kandla had passed an order-in-original on 31.03.2008 and dropped the proceedings initiated vide SCN dated 12.10.1999 issued by DRI against three noticees.

Revenue filed the appeal against one of the respondent M/s. National Impex Corporation before the Tribunal but appeals against the other two co-noticees was apparently missed out.

So, after six years the Revenue is before the CESTAT with two more appeals and applications for condonation of the delay.

The Revenue presumably works under the adage – better late than never.

Apprehensive that the COD applications would be rejected, the Revenue representative-submitted that the two appeals have to be considered as supplementary appeals.

For this proposition,the attention of the Bench is invited to the review order passed by the Committee of Chief Commissioners to emphasize that the department had every intention of filing appeal against all the respondents but due to administrative reasons, the same could not be filed. It is also submitted that filing of one single appeal before the Tribunal is enough and an appeal which is composite, if it is filed within time, delay in filing these appeals should be condoned.  Reliance is placed on some decisions in this regard of Lupin Ltd.  Shree Ganesh Knit (India) Ltd.,Toshniwal Bros. (Bombay) Pvt. Ltd. Support is also drawn from Rule 6A of the CESTAT Procedure Rules, 1982.

The respondent submitted that the application for condonation of delay should be dismissed as sufficient cause has not been shown by the Revenue. Reliance is placed on the decisions in S. Benjamin = 2012-TIOL-663-CESTAT-MAD,   Anurag Ferro Products (P) Ltd.  = 2008-TIOL-1968-CESTAT-KOL & Tata Yodogawa Ltd.  = 2002-TIOL-270-SC-CX-LB.

The Bench observed that the delay in filing the appeal before the Tribunal is approximately six years.

Thereafter, the CESTAT extracted the application made by the Revenue which inter alia reads –

"An appeal bearing no. C/310/2008 was filed by department against the OIO No. KDL/COMMR/13/Denovo/2008 dated 28.03.2008 for not imposing RF on the goods cleared, not imposing penalty on M/s. Adani Exports Ltd. and Shri Gautam Adani, Chairman of M/s. Adani Exports Ltd.  However through oversight only one appeal had been filed against M/s. National Impex Corporation and other two respondent viz. M/s. Adani Exports Ltd. and Shri Gautam Adani, Chairman of M/s. Adani Exports Ltd. separate appeal were not filed.  Hence, the separate appeal memo in respect of Shri Gautam Adani, Chairman of M/s. Adani Exports Ltd. is hereby filed with a request to condonation of delay and attached the same with original appeal bearing no. C/310/2008 dated 30.06.2008."

The CESTAT observed -

+ It can be seen from the above produced verbatim application for condonation of delay, that the Office of the Commissioner of Customs has sought the condonation of delay by only stating that through oversight only one appeal had been filed.

+ It is seen that no other justification is mentioned in the application for condonation of delay, filed by the revenue.

+ We are at loss to understand the mindset of the revenue authorities in filing such an application for condonation of delay without properly justifying the delay or indicating cause for delay.  Suffice to say that such an application needs to be summarily dismissed; we find that it is painful in hearing the matters of condonation of delay without being properly justified.

The Bench distinguished the case laws cited by the Revenue and also negatived the recourse taken of rule 6A of the Procedure Rules to justify the application for condonation of delay.

Holding that the decision of the apex court in the case of Office of the   Chief Post Master General Vs. Living Media India Ltd.  = 2012-TIOL-123-SC-LMT will apply to the case in hand as no sufficient cause had been shown by the Revenue, the applications for COD were dismissed and along with it the two appeals.

(See 2014-TIOL-916-CESTAT-AHM)