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2015 (2) TMI 30 - MADRAS HIGH COURTCondonation of delay - Benefit of exemption under notification No.21/02 dated 1.3.02 - Held that:- In order to test the bona fides of the appellant/importer and his sincerity in pursuing the matter, this Court called upon the appellant/importer to deposit an amount of ₹ 2 Lakhs as condition precedent to hear the appeal, which has been complied with by the appellant/importer and proof towards such deposit has also been produced before this Court. In such circumstances, this Court is inclined to proceed with the matter by examining the substantial issue relating to delay in filing the appeal and the explanation given thereof. The reason for non-appearance of the appellant/importer before the Tribunal has been explained stating that as the appellant/importer was on Haj pilgrimage in November, 2010, the affairs of the company was left at the hands of the staff, who had mismanaged the same and, therefore, the appellant/importer was in a quandary. On a perusal of the materials available on record, we find some justification in the explanation given by the appellant/importer, he being the sole proprietor. Further, the plea taken by the appellant/importer is acceptable for the reason that it is a case of proper import after assessment by an appropriate officer in the month of June, 2003 and, thereafter, investigation was mooted by the DRI, which culminated in the show cause notice in February, 2005. The appellant has been pursuing the matter from the stage of show cause notice, adjudication, appeal before the Commissioner, further appeal before the Commissioner (Appeals) and, thereafter, before the Tribunal in the first round. On remand by the Tribunal, the appellant/importer diligently pursued the matter before the Commissioner of Customs in the first de novo proceedings and once again on appeal to the Tribunal and subsequent remand order dated 20.10.09, pursued the matter sincerely in the 2nd de novo proceeding before the Commissioner of Customs. In view of the conduct of the appellant/importer in showing his bona fide by making the deposit as ordered by this Court reaffirming his sincerity in pursuing the matter, we find that his intention in pursuing the appeal is bona fide and the inaction that resulted in the delay, as attributed by the Tribunal to the appellant/importer, is only on account of the appellant/importer going on pilgrimage and, therefore, the inaction can be attributed only to the staff while the appellant/importer was away and the plea of mis-placement of the order, as pleaded by the appellant/importer is acceptable in the circumstances as aforementioned. In such view of the matter, this Court is of the considered view that the Tribunal should have taken a lenient view in condoning the delay. The dismissal of the appeal thereof, without considering the explanation offered by the appellant/importer, is erroneous and is liable to be set aside. - Matter remanded back - Delay condoned.
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