Vijender Kumar Anjan vs Appellate Authority and Another

G.S. Sandhawalia, J.—The present writ petition has been filed under Article 226/227 of the Constitution of India for quashing the order dated 30.06.2011 (Annexure P-2) whereby the Custom Excise & Service Tax Appellate Tribunal had dismissed the application of the petitioner for condonation of delay and resultantly, dismissed the appeal. The pleaded case of the petitioner is that he was working with M/s. Dollar Poly Pipe India Limited and thereafter, was appointed as Director in the company. In the year 2004 he resigned from the company and also from the directorship and had nothing to do with the affairs of the company after that show cause notice had been issued on 02.02.2007 to M/s. Dollar Poly Pipes Limited, its Chairman-cum-Managing Director, Dharamvir Bansal and V.K. Garg, Managing Director, proposing confiscation of goods and imposing penalty on the petitioner by raising a demand of Rs. 7,82,711/- in respect of duty free imported goods and a penalty of Rs. 25 lacs had been imposed upon the petitioner by the Commissioner vide the order dated 05.03.2009. The order dated 05.03.2009, was passed by respondent No. 2, Commissioner of Customs and was sent to the address of the company at 529, Sector 12, Panchkula. The company was in possession of the said office earlier but the same was taken over by the Bank in the year 2006 resulting in non-receipt of the order by the petitioner. The petitioner came to know about the order when recovery proceedings were initiated against him by the custom department. He filed an appeal before the appellate authority after obtaining the copy of the order on 26.02.2010. An appeal had been filed u/s 129-A of the Custom Act, 1962 along with an application for condonation of delay on the ground that the copy of the order was sent to the erstwhile address of the company which had been taken over by the Bank and the petitioner had resigned from the company in the year 2004. Pleadings were also put forth on merits of the case regarding the non-liability of petitioner. The appeal of the petitioner had been dismissed on the ground of limitation whereas the other appeals filed by the Directors were still pending.

Written statement was filed by respondent No. 2 pleading that the appeal had to be filed within 180 days and the petitioner did not make any request for condonation of delay. The petitioner had received show cause notice in February, 2007 on the same address and also furnished its reply to the show cause notice but did not intimate the department about his new address. D.K. Sharma, another noticee in show cause notice, was working as the Accountant for both the firms, M/s. Dollar Poly Pipes Limited and M/s. Shivalik Plastichem (India) Limited and was working under the directions of Vinod Kumar Bansal and had received the notice and filed appeal on 16.06.2009. Being an MBA, and while working with Vinod Kumar Bansal, he had complete knowledge of law. Accordingly, the order of the Tribunal was defended.

The petitioner filed replication to the written statement, today in the Court, which has been taken on record, stating that House No. 529, Sector 12, Panchkula had been sold in auction by the Bank and reiterated the pleas already taken.

A perusal of the impugned order dated 30.06.2011 shows that the Tribunal has noticed that the appeal was filed on 27.04.2010, almost one year from the date of service of the order and the ground for condonation of delay was that the office at 529, Sector 12, Panchkula had been taken over by the Bank in the year 2006 and, therefore, the petitioner did not get the order in original sent at that address. It was only when the recovery proceedings were initiated, that he came to know and got the copies of the orders on 26.02.2010. The Tribunal was of the view that since show cause notice was sent in February, 2007 on the same address, therefore, it did not find any reason to condone the delay in filing the appeal. Another reason which impressed the Tribunal was that D.K. Sharma, another noticee in the show cause notice, who was working as Accountant at the same address, had got the impugned order and filed the appeal on 16.06.2009 and, therefore, the explanation given by the petitioner was not justified.

After examining the record of the case, we are of the view that the petitioner had shown sufficient cause for condonation of delay. The petitioner had resigned in the year 2004 which has not been denied by respondent No. 2. The plea of the petitioner is that the notice was sent at 529, Sector 12, Panchkula, which was taken over by the Bank, and therefore, he did not receive the order of the Commissioner merits acceptance. The Tribunal on the basis of a very technical approach has dismissed the appeal on the ground of limitation. u/s 5 of the Limitation Act, 1963, if the appellant is able to show sufficient cause for the delay and justifies the same, the Court shall condone the delay. It has been repeatedly held by the Hon''ble Apex Court that there should be a liberal approach in the condonation of delay where the cause for the delay is justified. The Hon''ble Apex Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, held that the litigant ordinarily does not stand in lodging the appeal late and the Courts have to do substantial justice and technical considerations are not to be taken into account. There has to be a culpable negligence or mala fides and if a litigant does not gain by resorting to delay, the case should not be thrown out at the threshold and the cause of justice would be defeated. Similar observations flowed from the Hon''ble Apex Court in G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, Recently, the Hon''ble Apex Court, in Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, held that the term ''sufficient cause'' is an elastic provision and a liberal approach in condoning the delay of short duration has been approved.

Admittedly, against order dated 5.3.2009 another appeal has also been filed which is still pending and it would be in the interest of justice if the petitioner''s appeal is also heard on merits along with other connected appeal against the impugned order dated 05.03.2009. Accordingly, keeping in view the above-mentioned facts, we are of the opinion that the Tribunal was not right in declining the application for condonation of delay and the said order is legally not sustainable. Consequently, the order dated 30.06.2011 qua the petitioner is quashed and the plea of the petitioner regarding the condonation of delay is accepted and the delay in filing the appeal is condoned. The Tribunal is directed to decide the appeal filed by the petitioner on merits in accordance with law.