TMI Blog2009 (10) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... March/April 2007 by M/s. Sodexo (Pvt) Ltd. (Sodexo) appointed by the company to receive its mail, the same had not been brought to the notice of executives of the company dealing with customs matters. The application is accompanied by the sworn affidavit filed by Shri.Victor Rodrigues, the Senior Manager in charge of customs matters who had assumed charge after the previous incumbent Shri C.V. Seshagiri left the company in July 2006. As per this affidavit, the intimation of Appeal No. C/80/2007 filed by revenue was traced in April 2009 while weeding out obsolete records. It is also submitted that they have a good case on merits as similar dispute was decided in favour of the assessee by the Tribunal vide Accenture Services Pvt. Ltd. v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 129(A)(4) of the Customs Act (the Act) became redundant; this was not permissible. 4. We have considered the case records and the submissions. The delay involved is attributed to the notice of appeal filed by the Revenue not being noticed by the persons in the company concerned with customs matters. The Senior Manager concerned Shri Victor Rodrigues joined the company in October 2006; the notice of appeal was received in March/April 2007. Therefore, his predecessor leaving the organization in July 2006 does not seem to have any bearing on the delay as argued in the COD application. As per the applicants own account of the delay, they had outsourced matters relating to receipt and dispatch of mail to Sodexo; Sodexo had not apparentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receipt of the notice of appeal in March/April 2007. Not taking any action on the notice of Revenue s appeal was perfectly consistent with this stand of the appellant. A contrary view on the eligibility to the goods imported was taken by the Tribunal only in August 2007 vide 2007 (218) E.L.T. 588 (Tri.-Bang.). 5. We find that the claim of failure of Sodexo to bring the notice of appeal to the notice of concerned executive of assessee is not substantiated. The company has no case that Sodexo was duty bound to bring the notice of appeal to the notice of any executive of the appellant company concerned. We find that no affidavit of any representative of Sodexo has been furnished before us. The bona fide of the claim is suspect in the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143) E.L.T. 249 (S.C.)] that owing to its impersonal machinery, the state could not be put on the same footing as an individual, their lordships condoned the delay in filing the appeals before it and ordered as follows : 14. Looking into the facts and circumstances of the case, as noticed earlier and with the object of doing substantial justice to all the parties concerned, we are of the opinion that sufficient cause has been made out by the petitioners which has persuaded us to condone the delay in filing the petitions. Dismissing the appeals on technical grounds of limitation would not, in any way, advance the interests of justice but admittedly, result in failure of justice as the impugned judgments are likely to affect not only the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the appeal filed by the state against the High Court judgment refusing to condone four days delay under Section 5 of the Limitation Act. It was held that the State should not be accorded a step-motherly treatment when it applied for condonation of delay. Government business was conducted by an impersonal machinery; delay on its part was less difficult to understand. The state represented the collective cause of the community. In a justice oriented approach the Apex Court condoned the four days delay in filing the appeal. Raj Kishore Pandey v. State of Uttar Pradesh and others [2009-(002)-SCC-0692-SC] cited dealt with a restoration petition and not an application for condonation of delay. All these cases are distinguishable on facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt, it may not be apt on our part to consider the delay to have been due to sufficient cause. In the COD application it is submitted that the agency appointed by the appellant for the purpose had received the notice and did not bring it to the notice of the responsible functionaries of the assessee. From the application, we are not able to make out if the agency appointed had not carried out its assigned duties. We do not find anything on record to take a view that Sodexo was also responsible to distribute the tapal among the concerned in the assessee s organisation. Obviously the concerned person had received the paper and did not consider it necessary to file the cross appeal. It is not stated as to how the notice came to be misplaced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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