Commissioner of Customs (Airport) vs CESTAT

Indira Banerjee, J.—This writ application filed by the Commissioner of Customs (Airport), Kolkata, is directed against Order No. M-166-167/Kol/2012,/S-301-302/Kol/2012,/A-197-198/Kol dated 4th April, 2012 passed by the Customs, Excise, Service Tax Appellate Tribunal rejecting the three applications filed by the Commissioner of Customs (Airport) for condonation of delay of 309 days in filing the appeals being Customs Appeal Nos. C/A/93 of 2010 and C/A/120 of 2010. One M/s. Indo-China Maritime Agency being respondent no. 2 filed two Bills of Entry Nos. 547624 dated 21st March, 2009 and 548522 dated 27th March, 2009 for clearance of goods declared as synthetic net.

On scrutiny of the bills the Customs Authorities were of the view that the value of the declared goods were on the lower side. The value was, therefore, determined as per NIDB data. The goods were assessed provisionally. Samples were drawn and sent for testing.

The importer filed an appeal before the learned Commissioner (Appeals). By Order Nos. O/A No. Kol/Cus/CKP/357 and 358/2009 dated 9th June, 2009, the Appellate Commissioner allowed the appeals and rejected the enhancement of value as made by the Customs Authorities.

Being aggrieved by the order of the Appellate Commissioner, the Commissioner of Customs took a decision to prefer appeals therefrom. One of the grounds of appeal was that the assessment was only provisional. The assessment had not attained finality and as such no appeal lay. However, by reason of facts and circumstances stated in the petition filed by the writ petitioner, for condonation of delay, there was delay of 309 days in filing the appeal. By the order impugned, the learned Tribunal rejected the application for condonation of delay.

The order impugned is a cryptic order. The learned Tribunal found that delay of about one month from 15th March, 2010 to 21st April, 2010 had not been explained, though in the application for condonation of delay, the petitioners contended that the preparation of the appeal and the requisite connected ground work for filing of the appeal had taken about a month''s time.

The learned Tribunal appears to have adopted a pedantic approach. It is now well settled that in considering an application for condonation of delay Courts including Tribunals should adopt liberal approach as held by the Hon''ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, The Hon''ble Supreme Court held as follows:

Ordinarily a litigant does not stand to benefit by lodging an appeal late.

Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day''s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour''s delay, every second''s delay? The doctrine must be applied in a rational common sense pragmatic manner.

When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ''State'' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner.

The Court cannot be oblivious to the fact that departmental appeals involve unavoidable procedural delays by reason of pushing of files from one authority to the other, obtaining of the requisite clearances and the like, and a month''s time for preparation of the appeal and connected ground work for filing the appeal is not unreasonable.

In the view of this Court the learned Tribunal ought to have taken a more liberal approach. The impugned order is, thus set aside and quashed. The appeal shall be taken on file notwithstanding the delay of 309 days. The delay is condoned. It is, however, made clear that this Court expresses no opinion whatsoever on the merit of the appeal or of the maintainability of the appeal otherwise and it will be open to the parties to take all points before the learned Tribunal including the question of maintainability of the appeal.

This application is thus disposed of.

Affidavits not having been called for, the allegations in the writ petition save those which are matters of record, shall be deemed not to have been admitted. Urgent certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.