United Telecoms Ltd. v. Commissioner of Customs, Bangalore

[Order per : H.G. Ramesh J.]. - This writ petition is directed against the order dated 14-7-2006 (Annexure-D) passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (the Tribunal for short). By the impugned order, the Tribunal has dismissed the application filed by the petitioner company to condone the delay of 299 days in filing their appeal (Appeal No. C/COD/539/2005, C/443/2005) against the Order-in-Original No. 41/2004, dated 12-11-2004 passed by the Commissioner of Customs, Bangalore and consequently, the appeal also has been dismissed.

2. We have heard the learned counsel for the petitioner and the respondent and perused the impugned order.

3. Learned counsel for the petitioner submitted that the Tribunal had erred in law in dismissing the application filed by the petitioner company to condone the delay in filing the appeal on the ground that the petitioner company was negligent in prosecuting the matter. According to the counsel, there was no negligence on the part of the petitioner company and as could be seen from the two affidavits dated 29-5-2006, the cause for the delay of 299 days was properly explained; the two affidavits were filed by one C.P. Suresh, who is the Manager (Imports & Exports) of the petitioner company and another by C. Basavapurnaiah, who is the Chairman of the petitioner company. He further submitted that the approach made by the Tribunal is contrary to the judgments of the Hon’ble Supreme Court in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107 = (S.C.)] and in N. Balakrishnan v. M. Krishnamurthy. [(1998) 7 SCC 123 = (S.C.)].

4. Learned counsel for the respondent, however, supported the reasoning of the Tribunal in passing the impugned order.

5. In view of the above, the question for consideration in this petition is as to whether the Tribunal was right in dismissing the application filed by the petitioner company for condonation of the delay in filing the appeal. To examine the said aspect, it is relevant to refer to the two affidavits filed before the Tribunal for showing the cause for the delay in filing the appeal. C.P. Suresh, who is the Manager (Imports & Exports) of the petitioner company, has stated in his affidavit that he was responsible for all legal issues relating to imports & exports of the petitioner company and that he met with an accident on February, 2005 and was hospitalised and was undergoing continuous treatment and hence could not attend to office work till December, 2005, and therefore, the appeal could not be filed in time. C. Basavaparnaiah, who is the Chairman of the petitioner company, after reiterating what is stated by C.P. Suresh has stated in his affidavit that he had given the letter dated 1-12-2004 to the department to the effect that the petitioner company would not prefer any appeal against the order dated 12-11-2004 on the persuasion of the department.

6. The Supreme Court in the above referred two judgments has held that the words “sufficient cause” in Section 5 of the Limitation Act, 1963 should receive a liberal construction, so as to advance substantial justice. In our opinion, on the facts of the case, and in the light of the judgments of the Supreme Court referred to above, the Tribunal ought to have accepted the cause shown in the two affidavits and condoned the delay in filing the appeal, particularly in view of the fact that C.P. Suresh, Manager (Imports & Exports.) of the petitioner company could not attend to office work till December, 2005 due to the injuries suffered by him in an accident that occurred on 19-2-2005.

7. In the result, and for the reasons stated above, we make the following order :

(i)      the impugned order is set aside; the delay in filing the appeal referred to above is condoned;

(ii)    the Tribunal is directed to consider the petitioner’s appeal on merits and in accordance with law.

8. The Writ petition is allowed in the above terms but with no order as to costs.

9. Petition allowed.