Kluber Lubrication India Pvt. Ltd. vs Commissioner of Cus.

T.S. Sivagnanam, J.—This Civil Miscellaneous Appeal filed by the assessee is directed against the Final Order No. 678/2011, dated 23-6-2011 passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Chennai. The appeal is yet to be numbered as there is delay of 823 days in filing the appeal. The assessee has filed M.P. No. 1 of 2014 seeking to condone the delay of 823 days in filing the appeal. In the affidavit filed in support of the petition, it has been stated that the assessee could not file this appeal within the statutory period due to the reason that the concerned employee of the appellant company viz., Shri Nitish Hegde who was the Accounts Executive-Imports was unwell and left the company in January, 2013; as the said person was entrusted with the responsibility of filing appeal and as he left without giving suitable instructions to his successor in office, the appeal could not be filed in time.

The appeal before the CESTAT arose out of an order passed by the Commissioner of Customs (Appeals) dated 31-12-2008. The said appeal was filed by the assessee against the order of assessment of Bill of Entry dated 17-10-2007, 18-1-2008, 25-4-2008, 29-7-2008 and 30-8-2008 passed by the Deputy Commissioner of Customs (Group II), Customs House, Chennai. The assessee claimed that there was a typographical error and wrong details of RSP pertaining to one item in the bill of entry was furnished resulting in excess payment and by placing reliance on certain decisions of Supreme Court, they have come on appeal for cancellation of OOC and reassessment and refund of excess duty paid. It is to be noted that the assessee did not disclose the decisions on which they placed reliance.

The Commissioner of Customs (Appeals), after considering the case of the assessee held that there is no evidence to prove that RSP details for the impugned item and the details of RSP declared in the Bills of Entry could be checked only with the label pasted on the packages and the goods having been cleared and is not available for re-checking, there is no way to verify the bona fides of the plea made by the assessee; therefore, request made by the assessee to modify the RSP details was rejected. Further, the First Appellate Authority pointed out the assessee should have been careful while presenting the bill of entry and the check list should have been thoroughly verified for correct details and if not they could have been more observant when they paid duty, which they now claim was due to typographical error.

On further appeal before the Tribunal (CESTAT), after considering the case as projected by the assessee, the Tribunal rejected the same on the ground that in the absence of the reference point, namely, the labels on the packages showing the RSP, no case is made out to interfere with the order of the Commissioner of Customs (Appeals).

The assessee has challenged the order passed by the Tribunal in this appeal. However, at this stage of the matter, we are not inclined to go into the merits of the case, since the appeal itself has been filed with the delay of 823 days and unless the assessee succeeds in establishing there was sufficient cause which prevented them from filing the appeal in time, the question of considering the merits does not arise.

In order to condone the delay, the assessee should have shown sufficient cause for not filing the appeal with the time limit. The CESTAT passed the order on 23-6-2011. The assessee has not stated as to what date the order was served on the assessee. The only reason assigned in the affidavit filed in support of the condone delay petition is that their Accounts Executive-Imports left the company during January, 2013. However, the order of the Tribunal, having been passed in June, 2011, there is no explanation as to what the assessee was doing till January, 2013, when they paid substantial amount of duty on account of alleged typographical error which they realised only after goods were cleared after paying the duty.

First, except for the reason that the Accounts Executive left the job, there is no other reason furnished. Even according to the assessee, he left the job during January, 2013, whereas the order was passed by the Tribunal on 23-6-2011. Therefore, this could have been hardly taken as an explanation for the inordinate delay. The assessee has not furnished any other reason, much less acceptable reason for belatedly approaching this Court. The affidavit is bereft of particulars, the date on which the order passed by the Tribunal was served on the assessee has not been furnished, which appears to be deliberate. Therefore, we hold that the explanation offered is wholly unacceptable and the assessee were grossly negligent and their plea lacks bona fide. Unless the assessee was able to establish that the assessee was prevented from approaching this Court within the time due to reasons beyond their control or for bona fide reason, there is no reason to exercise discretion in the matter. Thus, taking note of the conduct of the assessee, we reject the prayer made for condonation of delay. For the above reasons, the application seeking condonation of delay is rejected and consequently the appeal stands dismissed as barred by limitation. No costs.