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2019 (9) TMI 79 - AT - CustomsSmuggling - Gold - provisional release of the vehicle - time limitation - appeal ought to have been filed within 90 days including the condonable period as provided in the statute - HELD THAT:- The appellant was diligently prosecuting the appeal filed before Commissioner (Appeals) against the order of provisional release. The Deputy Director of DRI vide Order, dated 15.01.2018 had directed for provisional release of the vehicle under provisions of section 110A of the Customs Act, 1962 on deposit of cash security of ₹ 5 lakhs. Aggrieved by such order, the appellant being the owner of the vehicle had filed an appeal before Commissioner (Appeals). They were given a personal hearing in this appeal on 29.06.2018 on which date the appellant had informed the Commissioner (Appeals) that the proceedings in respect of the show-cause notice issued, pursuant to the investigation had culminated in passing the Order-in-Original, dated 02.05.2018. Even then the Commissioner (Appeals) has taken another one month to dismiss the appeal observing that the application for provisional release has become infructuous. Had the appellant been informed that they could file an appeal against the Order-in-Original, dated 02.05.2018, and that the request for provisional release of vehicle has become infructuous on the date of personal hearing itself, the appellant would not have waited or continued to prosecute the appeal against the provisional release order. Thus, it can be seen that all through till the date of filing the appeal against this impugned order on 04.09.2018, the appellant has been consistently and diligently prosecuting her grievances for release of the vehicle. The Commissioner (Appeals), who while hearing the appeal also has a duty to inform the appellants at the time of personal hearing that when the show-cause notice has culminated in confirming confiscation of the vehicle, the application for provisional release cannot sustain. In not doing so, on the date of personal hearing itself, and thereafter passing the order after one month which was served much later sufficiently explains the reasons for the delay - the period taken by the appellant for prosecuting the grievance before the wrong authority ought to be excluded. Thus, when such period is excluded the appeal would be within time. Taking note of these facts and also together with the finding of fact in the Order-in-Original that the appellant had no involvement in the smuggling of the gold, she has to be given a chance to contest her grievance for release of the vehicle on merits. The appeal is remanded to the Commissioner (Appeals), who is directed to consider the same on merits - Appeal allowed by way of remand.
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