GEORGE PODIKUNJU Vs. COMMISSIONER OF CUS., MANGALORE

JUDGEMENT

(1.) BY this COD application, appellant is seeking condonation of delay of 1133 days in filing the appeal. The appellant contend that he is a poor person and was working as tindel of the vessel under one Mr. Diwakar Shetty, who is the owner of the seized smuggled goods. On his instructions, he had taken the boat/vessel and he did not know that the goods carried on this said boat/vessel were smuggled goods. He has contended that no show cause notice was received by him and he did not know about the passing of the impugned order. He came to know of the impugned order when recovery proceedings were initiated against him. He, therefore, prays for condonation of delay. The learned Counsel relied on the Tribunal ruling rendered in the case of State of Karnataka & Anr v. Annegowda & Ors. reported in 1985 (2) E.L.T. 7 (sic), which condoned the delay in the case of appeal filed by the State of Karnataka for the reasons given therein.

(2.) THE Revenue has opposed his prayer on the ground that the order has been served on the assessee and he was aware of the proceedings. It was also submitted that the appeal of Diwakar Shetty before this Tribunal had already been disposed of by confirming the imposition of penalty against Diwakar Shetty except for reducing the quantum of penalty. It is submitted that the delay being enormous, the delay cannot be condoned. The learned JDR contended that the judgment of State of Karnataka v. Annegowda (Supra) is not applicable, as there are number of Supreme Court judgment which has not condoned the delay even in Revenue cases. He relies on the ruling rendered in the case of UOI v. Tata Yodogawa Ltd. reported in 1988 (38) E.L.T. 739 (S.C.).

(3.) ON a careful consideration, we notice that the Commissioner has clearly recorded in the impugned order that the appellant had been represented by one advocate Mr. Mohammed Ali. Therefore, the appellant was fully aware and conscious of the proceedings against him. The Revenue has contended that the order has been served on him. It is his clear admission that he was working under Diwakar Shetty. The appeal of Diwakar Shetty was pending before the Tribunal and it was heard and disposed of. No steps were taken by the appellant for filing the appeal. There is enormous delay of 1133 days. No sufficient cause has been shown for condoning the delay. The negligent is apparent on record. In terms of the Supreme Court judgment cited by the JDR, such enormous delay cannot be condoned. Therefore, the COD application is dismissed and as a consequence, the stay and appeal is also dismissed.