Case Law Details
Royal Cushion Vinyl Products Limited Vs Commissioner Of Customs Export (CESTAT Mumbai)
On perusal of the date chart/list of events, as above, we find that as a sick company, the applicant was pursuing the matter before the BIFR under the Sick Industrial Companies (special Provisions) Act, 1985. Further, on examination of the case records, we find that there is no negligence on the part of the appellant in not filing of appeal within stipulated time frame provided under the statute. In so far as the issue of condonation of delay is concerned, the Tribunal is not only required to look at the period of delay but is also required to examine the qualitatively, as to whether the reasons set out for seeking the condonation of delay are genuine and bona fide. We find that in the similar set of facts, the Hon’ble Madras High Court in the case of Pentafour Products Ltd. Vs. CCE — 2013 (290) ELT A154 (Mad) has allowed the COD application considering the fact that the appellant company therein was a sick company and operating under the management of the Court Receiver.
In the case of Balakrishnan Vs. M. Krishnamurthy – 2008 (228) ELT 162 (SC), the Hon’ble Apex Court has held that length of delay is no matter, acceptability of the explanation is the only criterion. It has also been held that sometimes, delay of the shortest range may be uncondonable due to want of acceptable explanation; whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.
On going through the case records, we are convinced that the delay occurred in filing the appeal is genuine and satisfactory explanation was furnished by the applicant in support of condonation of the same. Therefore, the present miscellaneous application filed by the applicant is considered and accordingly, the delay caused in filing the appeal before the Tribunal is condoned.
FULL TEXT OF THE CESTAT MUMBAI ORDER
Heard both sides and perused the records.
2. Applicant has filed this miscellaneous application, seeking condonation of delay of 2644 days in filing the appeal before the Tribunal against the impugned order dated 30.04.2013 passed by the learned Commissioner of Customs (Exp.), Mumbai-I. The applicant has filed a date chart explaining the reasons of delay in filing the said appeal, which are reproduced below:-
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no. 182/2000 passed by BIFR. |
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| 18.09.2008 | Appellant was issued a show cause notice no. S/16-MISC-272/08/GRP-VII (M-Cell) dated 18.09.2008 by the Respondent demanding Rs.1,93,07,300 for nonfulfillment of export obligation. | |
| 28.02.2013 | During the relevant period, the proceedings before the BIFR was pending and the appeal operating agency was in the verge of finalizing the Draft Rehabilitation Scheme (DRS).
However, in de novo proceedings, the Respondent vide order dated 28.03.2013 confirmed the demands bt4 with a caution that no recovery proceedings shall be taken during the pendency of proceedings before the BIFR. |
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| 11.06.2015 | The draft revival scheme was approved and finalised by BIFR, proposing to extend the validity of advance licenses for a period of 7 years i.e. extension of time till 10.06.2022. Thus, appellant was under presumption that the proceedings before the Respondent would be kept in abeyance till 10.06.2022 and that the appellant need not file an appeal against the order of the Respondent. | |
| 01.11.2016 | Consequent to amendment of Sick Industrial Companies (Special Provisions) Repeal Act, 2003 vide Section 252 read with Eighth Schedule to The Insolvency and Bankruptcy Code, 2016, any reference made or inquiry pending before BIFR shall stand abated.
The provisions of section 252 read with Eight Schedule is effective from 01.11.2016 vide Notification No. S.O. 3355 (E) dt. 01.11.2016. The appellant was under a bona fide impression that the said proceedings would continue from the last stage. |
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| 12.02.2020
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Appellant received a recovery letter from the Respondent demanding . Rs.1,93,07,300/- in consequence of order dated 28.02.2013.It is only on this date the Appellant became aware that the department wanted to recover the amounts. |
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| 19.08.2020 | The Respondent No. 1 issued the detention notice under section 142(1)(b) of the Customs Act, 1962. | |
| 02.11.2020 | Appellant filed the appeal on 15.10.2020 and this application for condonation of delay was filed on 02.11.2020. | |
| 20.11.2020 | The Respondent vide impugned letter dated 20.11.2020 had directed the Axis bank manager to freeze and debit the account of the petitioner for recovery of outstanding demand along with interest. | |
| 22.01.2021 | attachment | Appellant filed the Writ Petition before the High Court of Bombay vide WP No. 2363 of 2021 against the bank letter dated 20.11.2020. |
3. On perusal of the date chart/list of events, as above, we find that as a sick company, the applicant was pursuing the matter before the BIFR under the Sick Industrial Companies (special Provisions) Act, 1985. Further, on examination of the case records, we find that there is no negligence on the part of the appellant in not filing of appeal within stipulated time frame provided under the statute. In so far as the issue of condonation of delay is concerned, the Tribunal is not only required to look at the period of delay but is also required to examine the qualitatively, as to whether the reasons set out for seeking the condonation of delay are genuine and bona fide. We find that in the similar set of facts, the Hon’ble Madras High Court in the case of Pentafour Products Ltd. Vs. CCE — 2013 (290) ELT A154 (Mad) has allowed the COD application considering the fact that the appellant company .therein was a sick company and operating under the management of the Court Receiver. Further, the Hon’ble Supreme Court in the case of Collector, Land Acquisition Anantnag and Another Vs. Mst. Katiji and others – 1987 (28) ELT 185 (SC) has framed a guidelines with regard to consideration of the application filed for condonation of delay. The guidelines framed in the said judgment are extracted herein below: –
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. “Every day’s delay must be explained” does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. 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.
5. 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.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
3. In the case of Balakrishnan Vs. M. Krishnamurthy – 2008 (228) ELT 162 (SC), the Hon’ble Apex Court has held that length of delay is no matter, acceptability of the explanation is the only criterion. It has also been held that sometimes, delay of the shortest range may be uncondonable due to want of acceptable explanation; whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory.
4. On going through the case records, we are convinced that the delay occurred in filing the appeal is genuine and satisfactory explanation was furnished by the applicant in support of condonation of the same. Therefore, the present miscellaneous application filed by the applicant is considered and accordingly, the delay caused in filing the appeal before the Tribunal is condoned. Registry is directed to assign the number to the appeal filed by the applicant and list the same for final hearing in due course of time.
5. In the result, the miscellaneous application filed by the applicant is allowed.
(Pronounced in open Court on 24.08.2022)
