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TMI Blog2015 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 3) Whether or not the principles underlying condonation of delay under Section 129A (5) of the Customs Act akin to the well settled principles under Section 5 of the Limitation Act? 4) Is not the reasoning and the findings rendered by the Tribunal perverse, given the absence of positive evidence to show that the appellant was served with the copy of the order impugned before the Tribunal? 5) Did not the Tribunal err in construing the date of communication of the order as date of knowledge of the order for the purpose of Section 129A (5) of the Customs Act? 2. The facts, as could be culled out from the records, is that the appellant/importer imported Computerised Embroidery Pattern Making Machine with Plotter under Bill of Entry No.323944 dated 5.6.03 and cleared the goods availing the benefit of exemption under notification No.21/02 dated 1.3.02, whereby countervailing duty, cess and SID were not levied. The DRI took up investigation of the matter after a period of time and after investigating the matter, issued a show cause notice dated 28.2.05 calling upon the importer/appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the subject machine imported and covered under the above Bill of Entry, which was seized under a mahazar dated 08.09.2004, under Section 111 (m) of the Customs Act, 1962. However, I give an option to M/s.Rank International, Tirupur, to redeem the goods on payment of a fine of Rs. 3,00,000/= (Rupees Three Lakhs only) under Section 125 of the Customs Act, 1962. (v) I impose a penalty of Rs. 2,50,000/= (Rupees Two Lakhs and fifty Thousand only) on M/s.Rank International, Tirupur, under Section 114A of the Customs Act, 1962. (vi) I impose a penalty of Rs. 2,50,000/= (Rupees Two Lakhs and fifty Thousand only) on M/s.Adarsh Shipping and Services, Tuticorin, under Section 112 (a) of the Customs Act, 1962. 5. The above order, it appears, was communicated to the appellant, but delay had occurred in filing the appeal for which reasons have been stated in the affidavit filed in support of the application for condonation of delay. The reasons, as set out in detail in the affidavit filed in support of the application for condonation of delay, together with other facts of the case, as found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ara-21 of the affidavit, which has been extracted above. 7. Heard the learned counsel appearing for the appellant/importer and the learned standing counsel appearing for the 1st respondent and also perused the documents available in the typed set of papers. 8. 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 Rs. 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. 9. 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 justificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the delay on the explanation submitted by the appellant/importer is further fortified by the decision of the Supreme Court in 2013 (5) CTC 547 (Esha Bhattacharjee V. Managing Committee of Raghunathpur, Nafar Academy and others), wherein the Apex Court enunciated the following guidelines: "15. From the aforesaid authorities the principles that can be broadly be culled out are: (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an Application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the Counsel or litigant is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application for Condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters." 12. The parameters in para 15 (i), (ii), (iii), (vi), (viii), (ix) and (xii), enunciated by the Supreme Court in the above case, can be invoked for deciding the present appeal. As a result, this appeal is liable to be allowed. 13. Accordingly, this appeal is allowed. The order passed by the Tribunal is set aside and the delay in filing the appeal before the Tribunal is condoned. The Tribunal is directed to take up the appeal along with the application for waiver of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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