Mohd. Idris Vs. Commissioner of Customs - Court Judgment

Excerpt:
1. the captioned appeal was filed on 20.12.1999 against order-in-original dated 31.03.1999 of the commissioner of customs. the impugned order was received by the party on 28.04.1999. there is delay of 147 days in the filing of the captioned appeal. the present application is for condonation of this delay.2. carefully examined the records. heard both sides. the main ground of this application is that the applicants were under legal advice not to file any appeal against the above order-in-original inasmuch as an appeal had already been filed by them before the tribunal against an earlier order passed by the commissioner in adjudication of dispute arising out of the some set of facts. such appeal is still pending before the tribunal and the same is also arising for regular hearing today (appeal no. c/688/98). on a perusal of the records of appeal no.c/688/98, i note that the said appeal is against order dated 11.09.1998 of the same adjudicating authority and that the said order was passed, confiscating a truck bearing registration no. up 53b-2068. it has been stated by the applicant that, pursuant to legal advice as aforesaid, they did not file any appeal against the subsequent order of adjudication passed by the same authority in respect of the same vehicle and on the same set of facts. it was only after obtaining a revised legal advice to the effect that a separate appeal ought to be filed against the subsequent order of the adjudicating authority that the captioned appeal no. c/402/99-nb(sm) was filed. there happened to be a delay in the filing as already noted. the present application is accompanied by an affidavit by the advocate who rendered the advice to the effect that no separate appeal was necessary in view of the pendency of appeal no. c/688/98-nb(sm). the affidavit, inter alia, states that a correct legal advice was obtained from the counsel for the applicant on 16.12.1999 and pursuant to such advice the appeal was filed on 20.12.1999. the present application is also accompanied by the applicant's affidavit.3. after hearing both sides, i am convinced of the bona fides of the grounds stated for condonation of delay, which are supported by proper affidavits. the records of appeal no. c/688/98-nb(sm) have been taken judicial notice of in respect of this application. the applicant cannot be put to any prejudice by reason of an incorrect legal advice. the applicant appears to have taken earnest steps without any latches or negligence after obtaining correct legal advice, in the matter of filing appeal before the tribunal. for these reasons, the cod application requires to be allowed and i do accordingly. the appeal shall be heard alongwith appeal no. c/688/98-nb(sm). the two appeals are posted for hearing to 30.10.2000.

Judgment:
1. The captioned appeal was filed on 20.12.1999 against Order-in-Original dated 31.03.1999 of the Commissioner of Customs. The impugned order was received by the party on 28.04.1999. There is delay of 147 days in the filing of the captioned appeal. The present application is for condonation of this delay.

2. Carefully examined the records. Heard both sides. The main ground of this application is that the applicants were under legal advice not to file any appeal against the above order-in-original inasmuch as an appeal had already been filed by them before the Tribunal against an earlier order passed by the Commissioner in adjudication of dispute arising out of the some set of facts. Such appeal is still pending before the Tribunal and the same is also arising for regular hearing today (Appeal No. C/688/98). On a perusal of the records of Appeal No.C/688/98, I note that the said appeal is against order dated 11.09.1998 of the same adjudicating authority and that the said order was passed, confiscating a truck bearing Registration No. UP 53B-2068. It has been stated by the applicant that, pursuant to legal advice as aforesaid, they did not file any appeal against the subsequent order of adjudication passed by the same authority in respect of the same vehicle and on the same set of facts. It was only after obtaining a revised legal advice to the effect that a separate appeal ought to be filed against the subsequent order of the adjudicating authority that the captioned appeal No. C/402/99-NB(SM) was filed. There happened to be a delay in the filing as already noted. The present application is accompanied by an affidavit by the Advocate who rendered the advice to the effect that no separate appeal was necessary in view of the pendency of appeal No. C/688/98-NB(SM). The affidavit, inter alia, states that a correct legal advice was obtained from the counsel for the applicant on 16.12.1999 and pursuant to such advice the appeal was filed on 20.12.1999. The present application is also accompanied by the applicant's affidavit.

3. After hearing both sides, I am convinced of the bona fides of the grounds stated for condonation of delay, which are supported by proper affidavits. The records of Appeal No. C/688/98-NB(SM) have been taken judicial notice of in respect of this application. The applicant cannot be put to any prejudice by reason of an incorrect legal advice. The applicant appears to have taken earnest steps without any latches or negligence after obtaining correct legal advice, in the matter of filing appeal before the Tribunal. For these reasons, the COD application requires to be allowed and I do accordingly. The appeal shall be heard alongwith Appeal No. C/688/98-NB(SM). The two appeals are posted for hearing to 30.10.2000.