IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34529 of 2008(I)
1. M/S. DUROFLEX EXPORTS PRIVATE LIMITED,
... Petitioner
Vs
1. THE COMMISSIONER OF CUSTOMS,
... Respondent
2. CUSTOMS, EXCISE AND SERVICE TAX,
For Petitioner :SRI.JOSEPH KODIANTHARA
For Respondent :SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :04/12/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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W.P.(C) No.34529 of 2008-I
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Dated, this the 4th day of December, 2008
JUDGMENT
H.L.Dattu, C.J.
Petitioner calls in question the legality or otherwise of the
orders passed by the Customs, Excise and Service Tax Appellate
Tribunal, South Zonal Bench at Bangalore (“Tribunal” for short) in
Miscellaneous Application and Appeal No. C/COD/363/2007 in
C/668/2007 dated 22.8.2008
(2). Petitioner before us, being aggrieved by the orders
passed by the Commissioner of Customs, Cochin, in Order-in-Original
No.07/2007 dated 27.2.2007 had preferred an appeal before the Tribunal.
In filing the appeal there was a delay of 145 days. To condone the delay
in filing the appeal, an application had been filed by the
petitioner/appellant. In that application the petitioner has stated the
reasons for approaching the Tribunal belatedly.
(3). The Tribunal, by its impugned order has rejected the
appeal, solely on the ground, that, in the original order passed, there is a
mention that, if for any reason, the petitioner is aggrieved by the
original order, he has to question the same within 90 days from the date
W.P.C. No. 34529/2008 -2-
of the order. Apart from this reason, Tribunal has not assigned any
other reason for rejecting the application filed by the petitioner.
(4). There is a discretion vested in the Tribunal to condone
the delay, if any, if sufficient cause is shown by the applicant in
approaching the Tribunal, if for any reason, he is aggrieved by the
original order passed by the authority under the Act. The Tribunal is
expected to find out whether the applicant has shown sufficient cause. If
the Tribunal is not satisfied with the cause shown, then only it can reject
the application, and, consequently the appeal. Merely because in the
original order it is stated that, the appeal requires to be filed within 90
days from the date of the order, and, if such appeal is not filed within
that time, the Tribunal cannot come to the conclusion that, sufficient
cause is not shown by the applicant in approaching the Tribunal
belatedly.
(5). In the instant case, the petitioner has shown sufficient
cause in approaching the Tribunal belatedly. In our considered opinion,
the delay in filing the appeal ought to have been condoned by the
Tribunal and ought to have decided the appeal on merits. In that view of
the matter, we pass the following:
W.P.C. No. 34529/2008 -3-
Order
i). Writ Petition is allowed.
ii). The impugned order passed by the Tribunal in
Misc.Application and Appeal No.C/COD/363/2007 in C/668/2007 dated
22.8.2008 (Mis.Order No.384/2008 & Final Order No.1049/2008 dated
22.8.2008) is set aside and the delay in filing the appeal is condoned.
iii). The Tribunal is directed to restore the appeal filed by
the petitioner on its Board and decide the appeal on merits.
Ordered accordingly.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
MS