M/S India Trade Links, Nagpur Thr. ... vs Union Of India, Thr. Ministry Of ...
2022 Latest Caselaw 26 Bom

                                              1                               capl1.21.odt



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH : NAGPUR

                 CUSTOM APPEAL (CAPL) NO.1 OF 2021

      M/s India Trade Links,
      A Proprietary Concern,
      Having office at Cotton Market Square,
      Near Loha Pul, Nagpur Through its Proprietor
      Shri Baljinder Singh s/o Inderjit Singh Nayyar,
      Aged about 49 years, Occ. Business,
      R/o. Cotton Market Square, Loha Pul, Nagpur.
                                                                       ...APPELLANT
                         ...V E R S U S...
1.    Union of India,
      Through Ministry of Finance,
      New Delhi.
2.    The Customs, Excise and Service Tax
      Appellate Tribunal, 3rd, 4th and 5th Floor,
      Jai Centre, 34 P. D'Mello Road, Masjid
      Bunder (E), Mumbai-400 009.
3.    The Commissioner of Customs,
      NS-II, JNCH, Nhava Sheva,
      Taluka Uran, Raigad,
      Maharashtra - 400 707.                                       ...RESPONDENTS
-------------------------------------------------------------------------------------------
Ms Soumya Choube, Advocate h/f Shri S.N. Chichbankar, Advocate for appellant.
Ms Meghna Munshi, Advocate for respondent no.1.
Shri S.N. Bhattad, Advocate for respondent no.3.
-------------------------------------------------------------------------------------------
                 CORAM : A.S. CHANDURKAR AND
                                PUSHPA V. GANEDIWALA, JJ.

DATED :- JANUARY 03, 2022.

ORAL JUDGMENT : (PER : PUSHPA V. GANEDIWALA, J.)

Admit. Heard finally Adv. Ms. Saumya Chaube for the

appellant, Adv. Ms. Meghna Munshi for respondent No. 1 and Adv.

Shri. S. N. Bhattad for respondent No. 3.

2 capl1.21.odt

2. This is an appeal under Section 130 of the Customs

Act preferred against an order dated 01.04.2021 passed by the

Member(Judicial) Customs, Excise and Service Tax Appellate

Tribunal, West Zonal Bench, Mumbai in Customs Appeal No.

88046/2019. On 29.11.2021, this Court issued notice to the

respondent No.1 and 3 for final disposal on the following

substantial questions of law.

"(i) Whether the Tribunal was justified in deciding the appeal in absence of counsel for the appellant?

(ii) Whether the delay of 75 days was not liable to be condoned?"

3. Before the learned Member of the Tribunal, the

appellant had challenged the order dated 24.10.2018 passed in

Appeal No.1630 (CRC-SAD-II) 2018 (JNCH)/ Appeals-II by the

Commissioner of Customs(Appeals), JNCH, Mumbai-II alongwith

an application for condonation of delay of 75 days caused in

preferring the appeal.

4. The learned Member (Judicial) of the Tribunal

dismissed the application for condonation of delay mainly for the

reasons mentioned in para 4, which reads thus:

3 capl1.21.odt

"4. I find that even though the applicant has attempted to make a case that it is the negligence of the first Consultant resulting into delay, however, the said plea has not been supported by any evidence by way of providing the name of the second Consultant nor the dates when it was initially given to the first Consultant and also when the draft copy of the appeal was given by the second Consultant for filing the appeal. Since the grounds explaining the inordinate delay is vague, hence, it does not warranted condonation."

5. The main grievance of the appellant is that without

hearing the appellant the impugned order came to be passed.

6. Learned counsel Shri S.N. Bhattad while supporting

the impugned order submitted that the reasons for causing delay

has not been sufficiently explained by the appellant and hence

appeal being devoid of any merit, is liable to be dismissed.

7. We have considered the rival contentions and perused

the impugned order so also the annexures.

8. At the outset, a perusal of the impugned order would

reflect that in the absence of the appellant or his counsel, the

impugned order came to be passed. The reason for the delay as

contended by the appellant is that his earlier counsel failed to 4 capl1.21.odt

prefer an appeal within the prescribed period of limitation and

therefore the appellant handed over the papers to the second

counsel for preferring the appeal. The learned Member of the

Tribunal found the reasons for delay to be vague and not

sufficiently explained. It is not disputed that the impugned order

of rejection of application for condonation of delay came to be

passed on merit behind the back of the appellant or his counsel.

The impugned order does not mention about any opportunity of

hearing was granted to the appellant. In our considered view, such

order rejecting the application on merit behind the back of the

appellant could not have been passed by the learned Member. At

the most the matter could have been posted for dismissal in

default. It appears that the learned Member has not followed the

basic principles of natural justice in passing the impugned order.

9. In our considered view, had the opportunity of

hearing been granted to the appellant, the appellant would have

satisfied the queries of the learned Member of the Tribunal. In the

absence of appellant the impugned order came to be passed. In

any case, the appeal has not been decided on merits. One

opportunity needs to be given to the appellant to argue his case on

merits. We find substance in the submission of the learned counsel

for the appellant. Therefore, we allow the application for 5 capl1.21.odt

condonation of delay and condone the delay caused in preferring

the appeal before the Tribunal by quashing and setting aside the

impugned order dated 01.04.2021. Accordingly, we answer both

the questions. We remand the matter before the learned Member

(Judicial) of the Tribunal to decide the appeal on merits.

9. The appeal stands allowed in the above terms and

disposed of. In the circumstances, no order as to costs.

                                            JUDGE                                  JUDGE

                                Wagh




Signed By:SURESH RAOSAHEB
WAGH
Personal Assistant
to the Hon'ble Judge
Signing Date:06.01.2022 11:04