SHARIKA INTERNATIONAL Vs. CC, (AIRCARGO)

JUDGEMENT

(1.) This is an application by M/s. Sharika International for waiver of condonation of delay of 1073 days in filing the appeal before the Tribunal.

(2.) Shri From Ranjan, learned Advocate, submitted that an advance licence dated 16.2.94 was issued to them having a validity period of 12 months and port of registration at Mumbai; that they applied for change of port of registration from Mumbai to New Delhi and the same was accordingly registered with New Delhi Customs for the purpose of monitoring; that they did not utilise the said licence in full but fulfilled the entire obligations undertaken for availing of the duty -free imports; that they also submitted a certificate from the Range Superintendent regarding non -availment of input stage credit; that the DGFT had also discharged the applicants vide letter dated 14.2.97; that all of a sudden they received a show cause notice dated 26.10.98 from the Commissioner of Customs, Mumbai alleging contravention of provisions of Section 111 (o) of the Customs Act consequent to violation of conditions of Notification No. 203 /92 -CUS as they had availed input stage credit under Rule 57A of the Central Excise Rules; that, subsequently, the Commissioner of Customs passed the impugned Order -in -Original confirming the demand of Rs. 42,88,416 alongwith interest and penalty of Rs. 4 lakh was imposed on them; that as they have been discharged by the DGFT, no action has to be taken by them with regard to the Order -in -original passed by the Commissioner (Customs); that they have received a notice dated 25.7.03 from the Commissioner of Customs for not making the payment of the duty and penalty imposed on them, they have filed the present appeal. He, further, submitted that the applicants were under the bona fide impression that the Commissioner (Customs) passed the impugned order with the belief that the applicants were registered with the Customs, Mumbai, which was not correct; that since they had informed the Commissioner (Customs) regarding the current position and also the fact that they stand discharged from any obligation, the Order -in -original would be withdrawn; that in such a situation, delay in filing should not be made a ground for denying justice as courts are to deliver justice and not to perpetuate injustice.

(3.) Opposing the prayer, Shri Vikas Kumar, learned D.R., submitted that the Order -in -Original dated 21.11.2000 was admittedly received by the applicants on 30.11.2000; that the order has clearly confirmed the duty against them besides imposing the penalty; that if the applicants were aggrieved with the impugned order, they should have filed the appeal before the Appellate Tribunal within time limit of three months of receipt of order as provided in Section 129A of the Customs Act; that no sufficient reasons have been advanced by the applicants for condoning the delay of almost 3 years in filing the appeal,