G.N. Srinivasan, Member(J)
1. Shri Vishal Agarwal, learned Chartered Accountant, argues that in the instant case the impugned order has been passed by the Commissioner without following the principles of natural justice. In this case the appellant is a ship breaker. They have imported a vessel named “M.V. Krusevac” sometime on 19.7.1991. On arrival the vessel was provisionally assessed and thereafter a final assessment was made on 31.3.1999 calling upon the assessee to pay Rs.31,122/-. It was case of the assessee that the order-in-original was made without following the principles of natural justice. Appeal before the Commissioner (Appeals) was filed belatedly by about 74 days and in the said appeal no application for condonation of delay has been filed. Shri Vishal Agarwal who undertakes to file the Vakalatnama argues that the impugned order is wrong inasmuch as no notice has been issued by the lower authority. He further states that law does not require a written application for condonation of delay. He also tries to state that an income-tax case decided on 17.1.1992 in respect of registration of the firm. In the said case the Supreme Court has held that principles of natural justice should be followed. He also cited judgment of the Supreme Court in the case of CCE vs. I.T.C. Limited 1994(71) ELT 324 for the proposition that when the provisional assessment is finalized there must be a notice. He also cited judgment of the Tribunal in the case of American Refrigerator Co. Ltd. vs. CCE 1993(66) ELT 341 where it has been held that hearing must be a necessity before a decision is rendered.
2. I have heard Shri Choubey, JDR for the department.
3. In the instant case there has been a lapse on the part of the appellant in filing the appeal belatedly by about 74 days. If they would have filed an application along with the appeal filed before the Commissioner (Appeals), then I would have known that are the circumstances which have necessitated the appellant in filing the appeal belatedly. Proviso to section 128 reads inter alia that the Commissioner(Appeals) may if he is satisfied that the appellant was prevented by sufficient cause from presenting within the aforesaid period of three months allow the appellant to present within further period of three months. Shri Vishal Agarwal’s argument has to be seen within the provisions relating to Customs. Appeals Rule, 1982 that deals with appeals to Commissioner and appeals to the appellate Tribunal as well as revision to the Central Government. In the said rules there is a reference to form of appeal to Commissioner (Appeals). The indication in the rules says specifically about a form of application to Commissioner(Appeals) in respect of sub-section (4) of section 129D. The thrust of the argument is that when there is no specific mention regarding any application under section 129 one will be tempted to think that there need not be any written application, But it must be stated that if any person who invokes a discretionary jurisdiction vested with the Commissioner (Appeals) regarding excusing the delay will have to come to the conclusion that it must be written in profited way because what is contained in the application must be verified to be true. The appeal being a continuation of the proceedings of the enquiry must be deemed to be a judicial proceedings within the meaning of section 193 and 283 of the IPC. If any person tells wrong facts deliberately to mislead the appellate authority, then unless he gives a written statement pleading as to why to appeal is filed belatedly that person cannot invoke the jurisdiction vested in the Commissioner(Appeals) to excuse the delay. I therefore feel that the argument of Shri Agarwal even though at a first blush may be attractive has to be rejected. If that is the state of affairs, then the person who files the appeal within time and the person who does not file the appeal within time, the latter person will have advantageous position of the person who follows the law.
4. As far as the case law is concerned, here it is a case of not giving the opportunity in finalizing the provisional assessment. The fact in each case has to be looked into. I am therefore of the view that I need not entertain the appeal. Moreover the case laws submitted by him is well known and will not be applicable to the case because this is a case of Customs Act, but the principles involved may be the same. But the decisions of the Supreme Court especially Income-tax case will not be applicable because in that case a written application was filed whereas in the instant case application for excusing the delay has not been filed in a profit way. (CIT vs. Ashoka Engineering Co.). As far as ITC Ltd. case is concerned, that was a case of excusing the delay. Here the question is regarding excusing the delay in respect of case where no applications has been filed (SIC) the appellant authority. I am not concerned with the merits of the case. Here I am concerned with the disposal of the excusing delay application which was never filed. I am therefore of the view that the ITC case cited by the learned counsel may not be applicable in the instant case. As far as American Refrigerator Co.Ltd. case is concerned, I feel that was a disposal of the appeal not in respect of application for excusing delay which was never filed in this case. Normally s peaking, appeal can never be dismissed without hearing the parties. It is a well known proposition which cannot be doubted. If the application itself is not filed how could the person claim the natural justice? I am therefore of the view that natural justice changes from circumstances to circumstances and case to case and hence I dismiss the instant appeal also under the second proviso to section 35B as it is not frequently appearing in this manner. Stay petitions are also dismissed.
(Dictated in Court)