Naresh Kumar vs Commissioner of Customs

CM 6520/2012 in CUSAA 10/2012, CM 6545/2012 in CUSAA 11/2012, CM 6549/2012 in CUSAA 12/2012, CM 6555/2012 in CUSAA 13/2012 -These are applications for condonation of delay of approximately 155 days in filing of the appeals (the period may vary slightly in each appeal). Ld. counsel for the respondent, who appears on advance notice states that application may be disposed of and he waives his right to file reply. The applicants had filed appeals before Customs, Excise & Service Tax Appellate Tribunal (''Tribunal'' for short), New Delhi against order-in-original dated 17-3-2009. By Order dated 25-3-2011, the appeals were dismissed for non-compliance of the Stay Order dated 28-2-2011 as the applicant JMD Oils Pvt. Ltd. had failed to deposit balance amount of ''3,64,386/-. We may note that the applicant JMD Oils Pvt. Ltd. had already deposited ''26,67,159/- prior to the issue of show cause notice. It is stated in the application that certified copy of the Order dated 25-3-2011 was received by the applicant on 22-4-2011. The legal matters of the applicant at that time were being conducted and looked after by one Rajesh Manocha. The allegation made by the applicants is that Rajesh Manocha was also responsible for the failure to deposit ''3,64,386/-, as this fact was not brought to the notice of the management. Subsequently, Rajesh Manocha left the services of the applicant JMD Oils Pvt. Ltd. and a new manager was appointed. After appointment of the new manager, the aforesaid order dated 25-3-2011 came to the knowledge and notice of the persons concerned and the management. Steps were taken and present appeals have been filed.

In view of the facts and circumstances, we allow the applications subject to payment of consolidate cost of ''25,000/-, which will be paid to the Commissioner of Customs by way of a demand draft within 4 weeks. In case the said cost is not paid within 4 weeks by sending a demand draft by registered post to the Commissioner of Customs, the application will be treated as dismissed.

CUSAA 10/2012 CUSAA 11/2012, CUSAA 12/2012, CUSAA 13/2012

These appeals u/s 130 of the Customs Act, 1962 (''Act'' for short) have been preferred against the order dated 25-3-2011 passed by Customs, Excise & Service Tax Appellate Tribunal, New Delhi (''Tribunal'', for short). In these appeals impugned order dated 25-3-2011 has been challenged. The impugned order records that as per Registrar''s report, the appellant herein had not complied with the pre-deposit order dated 1-2-2011. It further records that the appellants were not present and there was no request for adjournment. The Tribunal therefore dismissed the four appeals for non-compliance of the order for pre-deposit as per the provisions of Section 129E of the Act.

Having heard counsel for the parties, we frame the following substantial question of law :

Whether the Tribunal was right in dismissing the appeal on 25-3-2011 without noticing the fact whether the appellants had been served with the order dated 1-2-2011 and that the appellants had already deposited duty of ''26,67,159/- and only an amount of ''3,64,386/- was to be deposited?

The appellants herein had challenged the order-in-original dated 17-3-2009 before the Tribunal. Along with the appeals the appellants had filed applications for waiver of condition of pre-deposit. It may be noted that the appellant-JMD Oils Ltd. had also furnished a bank guarantee. In the Order dated 1-2-2011, the Tribunal recorded that the counsel for the appellants and the department/respondent could not point out whether the bank guarantee had been enchased. The counsel for the appellants had stated that they were ready and willing to deposit the entire customs duty of ''30,31,545/- within 4 weeks subject to the deduction, if any, realized or deposited prior to the order. The Tribunal in the order dated 1-2-2011 observed that this was a fair proposition and they had ordered accordingly.

It is stated that the appellant-JMD Oils Ltd. had already deposited an amount of Rs.26,67,159 prior to the issue of show cause notice itself. Thus, the appellant-company namely, JMD Oils Pvt. Ltd. was only required to deposit Rs.3,64,386/-. The other appellants were not specifically asked to deposit any amount.

On 25-3-2011, the following order was passed by the Tribunal:

The appellants are not represented. There is also no adjournment request. As per Registrar''s report dated 21-3-2011, the appellants have not complied with the pre-deposit order dated 1-2-2011. No compliance report has also been filed after recording of the report of the Registrar. As such, all the four appeals are dismissed for non-compliance of the direction of pre-deposit under the provision of Section 129-E of the Customs Act, 1962.

(Dictated & pronounced in the open Court.)

It is apparent from the aforesaid order that the Tribunal did not notice or refer to the fact that the appellant had already made a deposit of Rs.26,67,159/- and the balance amount payable was only Rs.3,64,386/-. It is apparent that the Registrar''s report did not mention and refer to the said deposit/payment which had already been made by the appellant. The aforesaid error/mistake is extremely important and relevant. Appeal was dismissed vide Order dated 25-3-2011. Thus, the appellants have been denied their right to first appeal on the said account.

The order dated 1-2-2011 was sent to the appellants along with the letter dated 15-3-2011. The next date of hearing was fixed on 25-3-2011. Therefore, sufficient time was not given to the appellants. The impugned order dated 25-3-2011 does not refer and note whether service of letter dated 15-3-2011 had been affected and whether appellants had sufficient time for making appearance and payment.

We may note here that the appellant - JMD Oils Ltd. has already deposited Rs.3,64,386/- on 9-3-2012. The appellants have stated that due to lapse of one Rajesh Manocha, who was looking after the legal matters of the company, the management was not informed about the order passed by the Tribunal and that it was required to deposit Rs.3,64,386/-. It is only after Rajesh Manocha left the company and a new manager was appointed, that the said lapse and failure came to notice. Keeping in view the aforesaid position we answer the question of law mentioned above in affirmative and in favour of the appellant-assessee and the appeal is allowed.

To cut short any delay, the parties shall appear before the Assistant Registrar on 7th May, 2012, when a date of hearing will be given. Dasti.