TMI Blog2022 (9) TMI 1575X X X X Extracts X X X X X X X X Extracts X X X X ..... of filing an appeal is three months. A proper and satisfactory explanation was required to be given for explaining the delay of four years and nineteen days in filing the appeal but despite having been granted an opportunity to file a better application to explain the delay, the Department has not been able to explain the enormous delay to the satisfaction of the Bench. The inevitable conclusion that flows from the aforesaid facts is that the Department was highly negligent in filing the appeal on February 10, 2022 to assail the order dated October 06, 2017 when the Department had, for the first time acquired knowledge on May 18, 2018 that the appeal had been returned to the Department by the Tribunal because despite three notices sent by the Tribunal, the defects had not been removed. Subsequently, even the letter dated December 17, 2020 sent by the Department to the Registry of the Tribunal admits that on verbal enquiry, the Department had been informed that the appeal papers had been returned. No cogent or plausible reason has been given by the Department for explaining this enormous delay except stating that it had written two letters to the Tribunal on November 23, 2020 and Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication are reproduced below: 1. That as directed by the Competent Authority i.e. Committee of Commissioners of Customs under section 129A (2) of the Customs Act, 1962 vide review order No. 08/2017 dated 26-12-2017, the Applicant filed an appeal on 8-1-2018 no. vide F. No. SVB/CUS/71/2012/503 against Order-in-Appeal No. CC(A)CUS/D1/GEN/436/2017 dated 6-10-2017 passed by the Commissioner of Customs (Appeals), New Custom House, New Delhi (hereinafter referred to as the Commissioner (Appeals) ) whereby the learned Commissioner (Appeals) rejected the appeal filed by the department against Order-in-Original No. SVB/CUS/29/P/2014 dated 17-12-2014 passed by the Deputy Commissioner of Customs, Special Valuation Branch, New Custom House, New Delhi. 2. That in the month of January, 2022 SVB Delhi were informed that some defects were raised in the appeal by Registry of Hon'ble CESTAT Delhi and Appeal copies were also returned to rectify the defects in year 2018. A copy of website print has also supplied by review cell, Commissionerate (General) wherein the defects in appeals are shown as (i) Application should be Central Punch (ii) Verification is not filed. 3. That Further, on physical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir letter C. No. VIII(HQ)10/Gen./110/2017 dated 30-6-2021 (Copy enclosed) vide which the importer was provided one set of the Appeal filed in this case. 5. That as the returned copies of the Appeal were not available in this office, the Commissioner of Customs (Airport General), has approved re-filing of appeal vide file no. VIII/HQ/10/Genera/Rev/110/2017, after removal of defects, hence the attested photocopies of earlier filed appeals duly centrally punched alongwith the fresh verification were requested to submit in the registry of Hon'ble CESTAT wherein it was stated that as the original appeals were returned to the appellant vide letter dated 8-5-2018 for non-compliance of defects in the appeal even after service of 3 notices to the appellant, hence resubmission/rectifications of defects of appeal was not possible at this stage. It was also opined that fresh appeal may be filed along with request of condonation of delay, if any. ** ** ** 10. That the delay was totally unintentional and caused due to reasons beyond the control of the concerned officer. 4. In paragraph 1 of the application, it has been stated that the Department had earlier filed an appeal on January 18, 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection but further movement of the letter is not known. The said letter dated May 08, 2018 sent by the Registry of the Tribunal specifically informed the Department that since the appeal was filed by the Department with defects and despite three notices the defects had not been removed, the appeal papers were being returned to the Department. In such circumstances, when the said letter dated May 18, 2018 was received by the Department on May 08, 2018, as is clear from the receipt register enclosed with the delay condonation application, the Department should have taken immediate steps for filing a fresh appeal before the Tribunal, but it transpires that such steps were not taken for a long period of time and it is only on February 10, 2022 that the appeal was filed. 8. What has also been stated in the delay condonation application is that a letter dated November 23, 2020/December 07, 2020 was sent by the Deputy Commissioner of Customs (Review) to the Registrar of the Tribunal mentioning therein that on verbal enquiry it had been communicated that the appeal papers had been returned back by the office of the Tribunal, but reasons for returning the appeal papers were not provided. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment and once the Department had been informed by letter dated May 08, 2018 that was received on May 18, 2018 that the said appeal that had been filed on January 08, 2018 was defective had been returned since it was defective, the Department should have taken immediate steps for filing a fresh appeal. This apart, even paragraph 4(1) of the delay condonation application mentions that the letter dated May 08, 2018 sent by the Registry of the Tribunal had been marked to the Joint Commissioner/Assistant Commissioner legal section but the Department is not aware as to what happened subsequently. 16. It also transpires that in the communication dated November 23, 2020/ December 17, 2020, the Deputy Commissioner of Customs (Review) admits that on verbal enquiry information was provided that the appeal papers had been returned back to the office by the Registry of the Tribunal. Once it came to the knowledge of the Deputy Commissioner of Customs (Review) that the appeal had been returned back, at least steps could have been taken at that point of time for filing a fresh appeal before the Tribunal but the appeal, as noticed above, was filed on February 10, 2022. It also needs to be noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application to explain the delay, the Department has not been able to explain the enormous delay to the satisfaction of the Bench. 21. Learned counsel for the respondent has placed reliance upon the decision of the Supreme Court in Union of India v. Vishnu Aroma Pouching Pvt. Ltd. 2021 (50) G.S.T.L. 337 (S.C.)/[2021] 129 taxmann.com 17 (SC)/[2021] 86 GST 836 (SC) to contend that when cogent or plausible grounds have not been stated, the application filed for condoning the delay it should be rejected. The relevant paragraphs of the judgment are reproduced below: We have heard Learned Additional Solicitor General both on the aspect of delay and merits. We say so despite the fact that we find that there is no reason to condone the delay. A perusal of the application shows that the judgment was pronounced on 14-11-2019. The proposal for filing the Special Leave Petition was sent after almost six months on 20-5-2020 and it took another three months to decide whether to file Special Leave Petition or not on 25-8-2020. 2. We are of the view that such kind of lethargy on part of the revenue department with so much computerization having been achieved is no more acceptable. 3. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps. 12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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