TMI Blog2017 (2) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... in the manner prescribed under the rules - this was more an error which pertained to the form than the substance of the matter. Impugned order set aside with a direction to respondent No.2 to decide the appeal on merits, subject to the petitioner depositing a cost of ₹ 10,000/- - appeal allowed by way of remand. - Writ Petition Nos.28908 and 28909 of 2016 and WMP No.24974 of 2016 in W.P.No.28908 of 2016 - - - Dated:- 5-1-2017 - Rajiv Shakdher, J. For the Petitioner : Mr.G.Derrick Sam For the Respondents : Mr.T.R.Senthil Kumar, CGSC ORDER 1. These two writ petitions, essentially bring forth the grievance of the petitioner that its matter has not been decided on merits. 1.1. The writ petition No.28908 of 2016 has been filed to assail the order-in-original dated 04.02.2016, while W.P.No.28909 of 2016 has been filed to assail the order of the Commissioner of Customs (Appeals), dated 06.07.2016. 2. As is obvious, upon perusal of the impugned orders that the order dated 04.02.2016, is an order on merits, whereas, the order dated 06.07.2016, whereby, the petitioner's appeal was dismissed, is not an order on merits, but is based on the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the respondents, based on Circular No.4/2016-Customs, dated 09.02.2016. 5. Continuing with the narrative, the record shows that the petitioner, instead of filing an appeal, lodged a letter dated 28.03.2016, with the Commissioner of Customs, Chennai. In the letter, the petitioner's Director sought to bring to fore various difficulties she had faced as a woman entrepreneur in establishing the business, and that, therefore, in the given circumstances, the order-in-original passed by the Adjudicating Authority ought to be withdrawn. 5.1. Admittedly, this letter was not entertained as an appeal by respondent No.2. A communication to this effect, was, concededly, sent by respondent No.1 on 21.04.2016, informing the petitioner that against the order-in-original, an appeal could be preferred before the Commissioner of Customs (Appeals) within the time frame prescribed under Section 128(1) of the Act. 5.2. I must indicate here that this letter has been placed on record only today by the learned counsel for the petitioner. Neither the contents nor the factum of issuance of this letter have been disputed by the learned counsel for the respondents. 6. It appears that given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed under Section 128(1) of the Act. 11. I have heard the learned counsels for the parties and perused the record. 12. In my view, while there can be no cavil with the proposition that respondent No.2 has no power to condone the delay under the provisions of Section 128 of the Act, what is required to be considered in the given facts obtaining between the parties for the present, is that, should this Court treat the representations made by the petitioner as appeals filed to assail the order-in-original. 12.1. A perusal of the representations dated 28.03.2016 and 27.04.2016, would show that the Director of the petitioner did convey to the respondents that the impugned order-in-original should be withdrawn. 12.2. Furthermore, a reading of the two communications would show that while the communication, dated 28.03.2016 was addressed to the Commissioner of Customs, the second communication dated 27.04.2016, was sent via e-mail to respondent No.2, i.e., Commissioner of Customs (Appeals). 13. The fact that respondent No.1, i.e., the Assistant Commissioner of Customs, Special Valuation Branch, vide a letter dated 21.04.2016, had directed the petitioner to prefer a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper context when he said in Evans v. Bartlem, 1937 AC 473 ...... the fact is that there is not and never has been a presumption that every one knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government. ....... (emphasis is mine) 14.2. Therefore, what, in my view, the Court has to look at is, as to whether a party aggrieved by an order passed by the original authority, lodged its grievance before the appropriate appellate forum within the prescribed time. The fact that the petitioner was aggrieved, was articulated by its Director, via its representations dated 28.03.2016 and 27.04.2016. The fact that the petitioner sought withdrawal of the order, i.e., the order-in-original, which, also emerges upon a perusal of the said representations, is not in d ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
