UNITED TELECOMS LTD. Vs. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) BY this application for condonation of delay, appellant is seeking condonation of delay of 299 days in filing the appeal. The impugned order -in -original No. 41/2004 -Cus., dated 12 -11 -04 was said to have been received by the appellant on 20 -11 -04. They ought to have filed appeal within 90 days. However, the appellant did not choose to file the appeal. On the other hand the chairman of the Company Shri C. Basava Purnaiah by his letter dated 1st December 04 referring to the impugned order confirmed to the Commissioner of customs that they did not propose to go on appeal. The said chairman in his letter to the Commissioner of Customs on the Companys letter head took a categorical decision not to appeal against the impugned order. The appellant in the application for condonation of delay in para 3.1 contend that in order to avoid the delay in clearing the goods, the demurrage cost involved and as the goods were urgently required by M/s. BSNL and due to various other commercial reasons, they waived the show cause notice and requested for adjudication. They paid the duty of Rs. 3,11,24,534/ - on various dates. They did not prefer the appeal and gave the letter to the Commissioner through their chairman. The reasons for delay and justification for its condonation is mentioned in paras 6 to 9 which are reproduced herein below.

(2.) AS can be seen from the grounds made out in the COD filed along with the appeal, the appellant did not choose to make any submission pertaining to non -availability of the Chairman or about the Directors in the Company or about their physical ailment, old age or disability in filing the appeal. The appellants counsel chose to file additional affidavit and time chart after completing his argument on 29 -5 -06; and after finding difficulty in explaining the delay, therefore additional submission have been filed with affidavit of the chairman of Shri Basava Purnaiah and of one person Shri C.P. Suresh. Shri C.P. Suresh has contended in his affidavit that he was responsible for import/export of the Company. He met with an accident on 19 -2 -05 and was hospitalized. He did not resume work till December 05 and hence the delay should be condoned. The affidavit of Shri Basava Purnaiah contend that Shri C.P. Suresh was authorized to represent any import and export of the Company., He did not attend work till December 05. He had given a letter dated 1 -12 -04 to the department that Company shall not prefer an appeal against the impugned order. He was under genuine impression that when such letter is given, they cannot prefer an appeal. Therefore he prays for condonation of delay. As can be seen from the records, these two affidavits are attempts made by appellants to improve their stand after the initial hearing of COD application 29 -5 -06.

(3.) WE have heard both the sides. We are of the considered opinion that the delay of 299 days cannot be condoned as the negligence is patent and clear on record. The cited Supreme Court judgement does not deal with the situation where the negligence is patent on record and where there is enormous delay of about 300 days. In fact the apex court has dismissed appeals with delayed application for condonation by the revenue in large number of appeals. The appellants had taken a clear decision not to file the appeal. Later their decision to file the appeal cannot be a ground to entertain the COD application. In a similar circumstance, the revenue had filed delayed appeal after taking a decision not to file the appeal. The appeal of the revenue against ITC Ltd. [2005 (192) E.L.T. 623] was dismissed as the lapses were apparent on record. The Tribunal has referred to its earlier larger bench judgment rendered in