Bhoruka Steel Ltd. vs Commissioner of Customs (Appeals)

T.S. Sivagnanam, J. - Heard Thiru. S. Murugappan, learned counsel for the petitioner and Thiru. T. Pramodkumar Chopda, for the respondents.

With the consent of both the sides, the writ petition is taken up for disposal.

In this writ petition, the petitioner is challenging the order passed by the first respondent, appellate authority, rejecting the appeal filed by the petitioner as against the Order-in-Original dated 10-11-2004, wherein penalty of Rs. 18,56,172/- has been imposed on the petitioner under Section 116 of the Customs Act, 1962 for his failure to account for the short-landing of 232.17 MTS of heavy melting scrap.

The appeal has been rejected as time-barred, as it was filed on the 31st day, i.e. one day beyond the condonable limitation period of 30 days. The first respondent has recorded in the impugned order that the Order-in-Original dated 10-11-2004 was despatched on 15-12-2004 was received by the petitioner on 16-12-2004, as per the acknowledgment card. According to the first respondent, the appeal has been preferred only on 17-3-2005 and that being beyond the condonable period, the same cannot be condoned.

The conclusion arrived at by the first respondent for rejecting the appeal is perfectly justified. The Act does not confer power on the Appellate Authority to condone the delay beyond the period of thirty days. In fact, there are decisions of this Court as well as Hon''ble Supreme Court stating that this Court should not embark upon such exercise when outer time limit has been fixed in a statute. Though this has been the rule, there have been certain exceptions where this Court has exercised its extraordinary jurisdiction, considering the peculiar facts and circumstances of the case. In my view, this is a fit case where such exercise should be done for the reason that Order-in-Original which was passed on 10-11-2004, is yet to be given effect to and it has not attained finality, in spite of lapse of nearly one decade. This writ petition has been pending before this Court from the year 2005 and eleven long years has lapsed and nothing has happened. Therefore, this is a good and sufficient reason for this Court to exercise its extraordinary jurisdiction and condone the delay, with a direction to the first respondent to hear the appeal on merits.

As rightly mentioned by the learned Senior Central Government Standing Counsel, this order should not be treated as a precedent, as it has been passed considering the peculiar facts and circumstances of the case.

The writ petition is allowed. There is no order as to costs. Consequently, W.P.M.P. No. 23828 of 2005 stands closed.

The delay in filing the appeal stands condoned. The first respondent is directed to consider the appeal, on merits and in accordance with law, after affording an opportunity of personal hearing to the petitioner.