C.C. Kandla Vs. Shree Gautam Adani and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1149272
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Ahmedabad
Decided OnMay-01-2014
Case NumberApplication No. C/COD of 11284 & 11285 of 2014 Appeal No. C/10650 & 10651 of 2014-DB (Arising Out of: OIO No.KDL/COMMR/13/De-novo of 2008, dt. 28.03.2008.)
JudgeTHE HONOURABLE MR. M.V. RAVINDRAN MEMBER (JUDICIAL) & THE HONOURABLE MR. H.K. THAKUR, MEMBER (TECHNICAL)
AppellantC.C. Kandla
RespondentShree Gautam Adani and Another
Excerpt:
m.v. ravindran, j. these two applications are for condonation of delay in filing the appeal before the bench, are filed by the revenue.  since both the applications arise out of the same order-in-original, they are being disposed of by a common order. 2. the application for condonation of delay in both these cases is seeking to condone the delay of approximately six years in filing the appeal.3. on perusal of the records, it is noticed that the commissioner of customs, kandla vide oio no.kdl/commr/13/de-novo/2008, dt. 31.03.2008 had dropped the proceedings initiated vide show cause notice dt. 12.10.1999 by the dri, against three noticees.4. revenue filed the appeal against one of the respondent m/s. national impex corporation before the tribunal.  these applications are filed for condoning delay in filing the appeals against other two respondents.5. ld. departmental representative while justifying the delay in filing the appeal, submits that these two appeals have to be considered as supplementary appeals.  for this proposition he takes us through the review order passed by the committee of chief commissioner, and draws our attention to the said review order it indicates that department had every intention against all the respondents.  he would submit that due to administrative reasons, appeals against the two respondents were not filed.  he would submit that filing of one single appeal before the tribunal is enough and an appeal which is composite if is filed within time, delay in filing these appeals should be condoned.  for this proposition, he relies upon the order of the tribunal in the case of commissioner of c.ex. and service tax (ltu) vs. lupin ltd. 2012 (285) elt 221 (tri.  mumbai).  he would also draw our attention to the decision of the honble high court of gujarat in the case of shree ganesh knit (india) ltd. vs. cce 2012 (280) elt 169 (guj.) for the proposition that sufficient cause is shown to justify the delay in filing the appeal.  he would also draw our attention the decision of the tribunal in the case of commissioner of customs, mumbai vs. toshniwal bros. (bombay) pvt. ltd. 2001 (133) elt 208 (tri. mumbai) to submit that delay of four years in filing the appeal in respect of other respondents as main appeal against importer is filed within time.5.1. it is his submission that the provisions of cestat procedure rules, 1982 and more specifically rule 6a of the rules reads to indicate that one appeal can be filed by the revenue against same order, as the commissioner is the only aggrieved person.  it is his submission that this has been settled by the tribunal in the case of cce, daman vs. shree sainath fabrics inds. ltd. 2003 (158) elt 218 (tri. del.). 6. ld. counsel appearing on behalf of the respondent on the other hand would draw our attention to the application filed for condonation of delay and submit that the revenue has not given any sufficient cause for condoning the delay.  he would submit that the tribunal in the case of the s. benjamin vs. cce, chennai 2013 (295) elt 91 (tri. chennai) has categorically recorded that sufficient cause needs to be ascertained from the facts on record.  it is also his submission that in the case of cce, chennai-iv vs. bush boake allen (ind) ltd. 2014 (300) elt 27 (mad.) honble high court has specifically laid down the law and held that reasons like non-receipt of copy of the order, change in panel counsel, paper filed on earlier occasions could not be traced, etc. are not sufficient cause for condoning the delay; he would also draw our attention to the decision of the tribunal in the case of anurag ferro products (p) ltd. 2008 (230) elt 51 (tri. kolkata) for the same proposition.  he would further submit that honble high court of gujarat in the case of karan monomers pvt. ltd. 2013 (297) elt 522 (guj.) also laid down the law that sufficient cause has to be shown for condonation of delay, as also held by supreme court in the case of union of india vs. tata yodogawa ltd. 1988 (38) elt 739 (sc).  he would submit that the application for the condonation of delay should be dismissed.7. we have considered the submissions made at length by both sides and perused the records.8. at the outset, we have record that delay in filing the appeal before the tribunal is approximately six years.9. application for condonation of delay as filed by revenue reads as under: in the matter of an appeal preferred against order in original no. kdl/commr/13/denovo/2008 dated 28.03.2008 passed by the commissioner of customs, customs house, kandla, the applicant hereby most humbly pray to kindly condon the delay of filing the appeal under section 129 d (4) of the customs act, 1962 considering the following ground and circumstances.an appeal bearing no. c/310/2008 was filed by department against the oio no. kdl/commr/13/denovo/2008 dated 28.03.2008 for not imposing rf on the goods cleared, not imposing penalty on m/s. adani exports ltd. and shri gautam adani, chairman of m/s. adani exports ltd.  however through oversight only one appeal had been filed against m/s. national impex corporation and other two respondent viz. m/s. adani exports ltd. and shri gautam adani, chairman of m/s. adani exports ltd. separate appeal were not filed.  hence, the separate appeal memo in respect of shri gautam adani, chairman of m/s. adani exports ltd. is hereby filed with a request to condonation of delay and attached the same with original appeal bearing no. c/310/2008 dated 30.06.2008. place: kandla (k.l. goayl) date: 20.02.2014 commissioner custom house, kandla.10. it can be seen from the above produced verbatim application for condonation of delay, that the office of the commissioner of customs has sought the condonation of delay by only stating that through oversight only one appeal had been filed.  it is seen that no other justification is mentioned in the application for condonation of delay, filed by the revenue. we are at loss to understand the mindset of the revenue authorities in filing such an application for condonation of delay without properly justifying the delay or indicating cause for delay.  suffice to say that such an application needs to be summarily dismissed; we find that it is painful in hearing the matters of condonation of delay without being properly justified.  we are of the view that the decisions relied upon by the departmental representative does not carry their case any further for the simple reason that in all those cases revenue had filed the composite appeal before the tribunal and cestat registry had directed to file appeals against other respondents.  in the case in hand the revenue has filed only one appeal against the respondent m/s. national impex corporation as can be ascertained from the papers in appeal no.c/310/2008.11.  be that as it may, we find the law has been settled by the various decisions of the apex court, high courts and the tribunal that the tribunal has power to condone the delay of any number of days, provided sufficient cause is shown.  as has been held in the case of office of the chief post master general vs. living media india ltd. 2012 (277) elt 289 (sc), if the appellant is government or a wing of the government is a party it itself cannot be reason for condoning the unjustified delay, even though a liberal approach and concession has to be adopted in condoning the delay in appeals filed by the government.  the ratio laid down by their lordships in living media india ltd. will apply in the case in hand on all square as it can be seen that the application for condonation of delay (which is reproduced verbatim hereinabove) does not indicate any cause.12.  as regards, the argument advanced by the ld. departmental representative as per the rule 6a of the cestat procedure rules, 1982 commissioner being an aggrieved person can file only one appeal is the law settled by tribunal in the case of shree sainath fabrics inds. ltd. (supra), is accepted position, subject to the factual matrix that revenue has filed composite appeal before the tribunal.  we have already recorded that in appeal no. c/310/2008 revenue has not filed the composite appeal but has filed only one appeal and the current respondents are not joined as parties.  hence, this proposition as put forth by the ld. departmental representative also does not require much deliberations.13.  in view of the foregoing, we are of the considered view that revenue has not made out any case for condonation of delay in filing these appeals before the tribunal.  applications for condonation of delay are dismissed; consequently the appeals are also dismissed.
Judgment:

M.V. Ravindran, J.

These two applications are for condonation of delay in filing the appeal before the bench, are filed by the revenue.  Since both the applications arise out of the same Order-in-Original, they are being disposed of by a common order. 2. The application for condonation of delay in both these cases is seeking to condone the delay of approximately six years in filing the appeal.3. On perusal of the records, it is noticed that the Commissioner of Customs, Kandla vide OIO No.KDL/COMMR/13/De-novo/2008, dt. 31.03.2008 had dropped the proceedings initiated vide show cause notice dt. 12.10.1999 by the DRI, against three noticees.4. Revenue filed the appeal against one of the respondent M/s. National Impex Corporation before the Tribunal.  These applications are filed for condoning delay in filing the appeals against other two respondents.5. Ld. Departmental Representative while justifying the delay in filing the appeal, submits that these two appeals have to be considered as supplementary appeals.  For this proposition he takes us through the review order passed by the Committee of Chief Commissioner, and draws our attention to the said review order it indicates that department had every intention against all the respondents.  He would submit that due to administrative reasons, appeals against the two respondents were not filed.  He would submit that filing of one single appeal before the Tribunal is enough and an appeal which is composite if is filed within time, delay in filing these appeals should be condoned.  For this proposition, he relies upon the order of the Tribunal in the case of Commissioner of C.Ex. and Service Tax (LTU) Vs. Lupin Ltd. 2012 (285) ELT 221 (Tri.  Mumbai).  He would also draw our attention to the decision of the Honble High Court of Gujarat in the case of Shree Ganesh Knit (India) Ltd. Vs. CCE 2012 (280) ELT 169 (Guj.) for the proposition that sufficient cause is shown to justify the delay in filing the appeal.  He would also draw our attention the decision of the Tribunal in the case of Commissioner of Customs, Mumbai Vs. Toshniwal Bros. (Bombay) Pvt. Ltd. 2001 (133) ELT 208 (Tri. Mumbai) to submit that delay of four years in filing the appeal in respect of other respondents as main appeal against importer is filed within time.5.1. It is his submission that the provisions of CESTAT Procedure Rules, 1982 and more specifically Rule 6A of the Rules reads to indicate that one appeal can be filed by the revenue against same order, as the Commissioner is the only aggrieved person.  It is his submission that this has been settled by the Tribunal in the case of CCE, Daman Vs. Shree Sainath Fabrics Inds. Ltd. 2003 (158) ELT 218 (Tri. Del.). 6. Ld. Counsel appearing on behalf of the respondent on the other hand would draw our attention to the application filed for condonation of delay and submit that the revenue has not given any sufficient cause for condoning the delay.  He would submit that the Tribunal in the case of the S. Benjamin Vs. CCE, Chennai 2013 (295) ELT 91 (Tri. Chennai) has categorically recorded that sufficient cause needs to be ascertained from the facts on record.  It is also his submission that in the case of CCE, Chennai-IV Vs. Bush Boake Allen (Ind) Ltd. 2014 (300) ELT 27 (Mad.) Honble High Court has specifically laid down the law and held that reasons like non-receipt of copy of the order, change in panel counsel, paper filed on earlier occasions could not be traced, etc. are not sufficient cause for condoning the delay; he would also draw our attention to the decision of the Tribunal in the case of Anurag Ferro Products (P) Ltd. 2008 (230) ELT 51 (Tri. Kolkata) for the same proposition.  He would further submit that Honble High Court of Gujarat in the case of Karan Monomers Pvt. Ltd. 2013 (297) ELT 522 (Guj.) also laid down the law that sufficient cause has to be shown for condonation of delay, as also held by Supreme Court in the case of Union of India Vs. Tata Yodogawa Ltd. 1988 (38) ELT 739 (SC).  He would submit that the application for the condonation of delay should be dismissed.7. We have considered the submissions made at length by both sides and perused the records.8. At the outset, we have record that delay in filing the appeal before the Tribunal is approximately six years.9. Application for condonation of delay as filed by revenue reads as under:

In the matter of an Appeal preferred against Order in Original No. KDL/COMMR/13/Denovo/2008 dated 28.03.2008 passed by the Commissioner of Customs, Customs House, Kandla, the Applicant hereby most humbly pray to kindly Condon the delay of filing the Appeal under Section 129 D (4) of the Customs Act, 1962 considering the following ground and circumstances.An appeal bearing no. C/310/2008 was filed by department against the OIO No. KDL/COMMR/13/Denovo/2008 dated 28.03.2008 for not imposing RF on the goods cleared, not imposing penalty on M/s. Adani Exports Ltd. and Shri Gautam Adani, Chairman of M/s. Adani Exports Ltd.  However through oversight only one appeal had been filed against M/s. National Impex Corporation and other two respondent viz. M/s. Adani Exports Ltd. and Shri Gautam Adani, Chairman of M/s. Adani Exports Ltd. separate appeal were not filed.  Hence, the separate appeal memo in respect of Shri Gautam Adani, Chairman of M/s. Adani Exports Ltd. is hereby filed with a request to condonation of delay and attached the same with original appeal bearing no. C/310/2008 dated 30.06.2008.

Place: KANDLA (K.L. GOAYL)

Date: 20.02.2014 Commissioner Custom House, Kandla.10. It can be seen from the above produced verbatim application for condonation of delay, that the Office of the Commissioner of Customs has sought the condonation of delay by only stating that through oversight only one appeal had been filed.  It is seen that no other justification is mentioned in the application for condonation of delay, filed by the revenue. We are at loss to understand the mindset of the revenue authorities in filing such an application for condonation of delay without properly justifying the delay or indicating cause for delay.  Suffice to say that such an application needs to be summarily dismissed; we find that it is painful in hearing the matters of condonation of delay without being properly justified.  We are of the view that the decisions relied upon by the Departmental Representative does not carry their case any further for the simple reason that in all those cases revenue had filed the composite appeal before the Tribunal and CESTAT registry had directed to file appeals against other respondents.  In the case in hand the revenue has filed only one appeal against the respondent M/s. National Impex Corporation as can be ascertained from the papers in appeal no.C/310/2008.11.  Be that as it may, we find the law has been settled by the various decisions of the Apex Court, High Courts and the Tribunal that the Tribunal has power to condone the delay of any number of days, provided sufficient cause is shown.  As has been held in the case of Office of the Chief Post Master General Vs. Living Media India Ltd. 2012 (277) ELT 289 (SC), if the appellant is Government or a wing of the Government is a party it itself cannot be reason for condoning the unjustified delay, even though a liberal approach and concession has to be adopted in condoning the delay in appeals filed by the Government.  The ratio laid down by their Lordships in Living Media India Ltd. will apply in the case in hand on all square as it can be seen that the application for condonation of delay (which is reproduced verbatim hereinabove) does not indicate any cause.12.  As regards, the argument advanced by the Ld. Departmental Representative as per the Rule 6A of the CESTAT Procedure Rules, 1982 Commissioner being an aggrieved person can file only one appeal is the law settled by Tribunal in the case of Shree Sainath Fabrics Inds. Ltd. (Supra), is accepted position, subject to the factual matrix that revenue has filed composite appeal before the Tribunal.  We have already recorded that in appeal no. C/310/2008 revenue has not filed the composite appeal but has filed only one appeal and the current respondents are not joined as parties.  Hence, this proposition as put forth by the Ld. Departmental Representative also does not require much deliberations.13.  In view of the foregoing, we are of the considered view that revenue has not made out any case for condonation of delay in filing these appeals before the Tribunal.  Applications for condonation of delay are dismissed; consequently the appeals are also dismissed.