2020 (11) TMI 165 - HC - Customs

Condonation of delay of 764 days in filing appeal - imposition of penalty on the Appellant a clearing and forwarding Agent - alleged violation of Regulation No. 11(a) and (n) of CBLR 2013 - HELD THAT - For the fault of the advisor/counsel the Assessee should not suffer and the fact finding bodies like Tribunal should make endeavour to decide the appeals on merits as far as possible rather than taking a pedantic approach of dismissing the appeals on the ground of delay unless there is a gross delay and no sufficient reason is made out. Keeping in view the fact that there was a finding against the Assessee about the alleged mis-declaration for which penalty was imposed on the Assessee we are of the view that the Final Appellate Authority under the Act ought to have applied its mind to the merits of the case and then decide the appeal on merits - the matter is remitted back to the learned Tribunal for deciding the appeal on merits and in accordance with law after giving an opportunity of hearing to both the parties - Appeal allowed by way of remand.

Summary

Issues:
Appeal dismissal due to delay in filing.

Analysis:
The appeal was filed by the Assessee against an order imposing a penalty of Rs. 50,000 for violating Regulation No. 11(a) and (n) of CBLR, 2013. The Tribunal dismissed the appeal solely on the ground of a significant delay of 764 days in filing the appeal. The Tribunal noted that the Assessee failed to promptly avail the appeal remedy and deliberately chose not to file the appeal initially. The Assessee's claim of intending to expand business and facing potential issues with obtaining an NOC was not supported by evidence, being termed as mere apprehension. The Tribunal emphasized that the law of limitation cannot favor those who delay without sufficient cause.

The Counsel for the Appellant argued that the enquiry found no mis-declaration by the Assessee, but the Commissioner imposed the penalty regardless. The Tribunal's decision to dismiss the appeal based solely on delay, attributed to wrong legal advice, was contested. The Counsel for the Department did not dispute the favorable findings of the enquiry officer but supported the impugned order due to the substantial delay in filing the appeal.

Upon considering the arguments, the Court opined that the Assessee should not suffer due to the fault of the advisor/counsel. It emphasized that fact-finding bodies like the Tribunal should strive to decide appeals on merits rather than dismissing them for delay, unless there is a gross delay without sufficient reason. The Court highlighted the need for the Final Appellate Authority to evaluate the merits of the case before deciding the appeal. Consequently, the Court allowed the appeal, setting aside the Tribunal's order and remitting the matter back for a decision on merits after providing a hearing to both parties.

In conclusion, the Court disposed of the appeal without costs, emphasizing the importance of deciding appeals on their merits and ensuring that delays in filing do not unduly prejudice parties.