SANJOY KUMAR SAH Vs. COMMISSIONER OF CUSTOMS, PATNA

JUDGEMENT

(1.) LD . Counsel appearing submitted that admittedly there was 715 days delay for seeking appeal before the Tribunal and the ld. Commissioner (Appeals) without exercising discretionary power dismissed the appeal when the appeal was filed beyond 60 days but within 90 days. The appellant received the impugned order for appeal before the ld. Commissioner on 29 -4 -03 and filed the appeal on 20th July, 2003. Although such a filing is beyond 60 days, that was well within the period of 30 days of discretion. But the appellant did not move delay condonation petition for the appeal for which the ld. Commissioner (Appeals) was handicapped to consider appellant's case in accordance with law although he reproduced the provision contained in Section 128 of Customs Act, 1962.

(2.) THE ld. D.R. although opposed that 715 days delay should not be condoned, he was fair enough to say that the appellant was deprived of justice for his failure to move condonation application before the ld. Commissioner (Appeals).

(3.) IT appears that although Revenue was co -operative, the appellants failed for his own cause. Further, following the Apex Court decision in Master Katiji case, if the appeal is thrown at the threshold on the point of limitation, the appellant will be debarred of the process of justice and the forums are not sitting simply to legalise injustice. Therefore, it would be proper on the part of the appellant to appear before the ld. Commissioner (Appeals) and make an application for condonation of delay. After the ld. Commissioner is satisfied that such a delay is explained, he may exercise his discretionary power under Rule 128 of the Customs Act, 1962 and hear the matter on merit. Accordingly, the appeal is allowed only on the above limited issue. Since the appeal is remitted back to the ld. Commissioner, stay petition becomes infructuous.