2006 (5) TMI 99 - HC - Customs

Condonation of delay in filing appeal - Appeal to Commissioner (Appeals) - time barred - power to condone the delay beyond the period prescribed under the statute - HELD THAT - As per Section 128 of the Act an appeal by a person may be filed to the Commissioner (Appeals) within 60 days from the date of communication to him of any decision or order passed under the Act by an officer of Customs lower in rank than a Commissioner of Customs. The period of limitation prescribed under the Section commences from the date of communication of the decision or order and Section 128 does not say that the period of limitation commences only from the date of actual service of the decision or order. The learned counsel for the petitioner submitted that considering the fact that similar issue that arises for consideration in the Appeal filed by the petitioner is already decided in favour of the importers in other connected appeals and if the appeal is considered on merit by the first respondent the petitioner will get a favourable decision and on that basis submitted that the appeal may be remitted back to the first respondent to consider the same on merits. But the said contention of the learned counsel for the petitioner could not be countenanced as the appeal had been filed by the petitioner with the delay of 272 days which is beyond the condonable period of 30 days provided in Section 128(1) of the Act. It could not also be countenanced for the reason that the proviso to Section 128(1) of the Act specifically stipulates that the Appellate Authority can condone the delay up to 30 days only. Therefore unless the statute makes provision for condonation of delay or extension of time on cause being shown or otherwise the Appellate Authority functioning within the framework of the statute cannot relax the time limits prescribed thereunder. Therefore the impugned order of the first respondent is perfectly valid and legal and the same has to be sustained. Thus the above writ petition fails and accordingly is dismissed. No costs. Consequently the connected WPMP and WVMP are closed.

Summary

Issues Involved:
1. Timeliness of the appeal filed by the petitioner.
2. Service of the order-in-original on the petitioner.
3. Availability and exhaustion of alternative remedies.

Issue-wise Detailed Analysis:

1. Timeliness of the Appeal:
The petitioner filed an appeal against the order-in-original dated 7-5-2004, which was dismissed by the Commissioner of Customs (Appeals) as time-barred. The appeal was filed beyond the statutory period prescribed under Section 128A of the Customs Act, 1962, which allows the Appellate Authority to condone a delay of up to 30 days only. The petitioner contended that the delay was neither willful nor wanton and was due to a bona fide belief and understanding. However, the court found that the appeal had been filed with a delay of 272 days, which is beyond the condonable period. The court upheld the Commissioner's decision, stating that the statute does not allow for condonation of such a delay.

2. Service of the Order-in-Original:
The petitioner argued that the order-in-original was not actually served on them, and hence, the limitation period did not start. The order was sent by registered post and returned with postal endorsements "absent" and "intimation delivered." The respondents contended that the service should be deemed effective under Section 153 of the Customs Act and Section 27 of the General Clauses Act. The court referred to various judgments, including A.I.R. 1966 S.C. 330 and 1994 (74) E.L.T. 509 (Cal.), which emphasized that "giving" notice is not complete unless received. However, the court found the Division Bench judgment in 2000 (126) E.L.T. 65 (Mad) more applicable, which held that service is deemed effective when sent by registered post and returned with endorsements like "left." The court concluded that the order was properly served as per Section 153 of the Customs Act and Section 27 of the General Clauses Act.

3. Availability and Exhaustion of Alternative Remedies:
The respondents argued that the petitioner had an alternative remedy by way of an appeal to the Tribunal but chose to file a writ petition instead. The court noted that the writ petition had already been admitted, and an interim order had been passed in favor of the petitioner. Therefore, it would not be equitable to reject the writ petition on the ground of availability of an alternative remedy. The court decided to consider the merits of the case despite the availability of an alternative remedy.

Conclusion:
The court dismissed the writ petition, holding that the appeal was rightly dismissed as time-barred and that the order-in-original was properly served on the petitioner. The court emphasized that the statutory framework does not allow for condonation of delays beyond the prescribed period, and the impugned order of the Commissioner of Customs (Appeals) was valid and legal. Consequently, the connected WPMP and WVMP were also closed.