High Court Kerala High Court

M/S. Duroflex Exports Private … vs The Commissioner Of Customs on 4 December, 2008

Kerala High Court
M/S. Duroflex Exports Private … vs The Commissioner Of Customs on 4 December, 2008
       

  

  

 
 
  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.
               ------------------------------------------------------
                        W.P.(C) No.34529 of 2008-I
                  -------------------------------------------------
                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