2009 (8) TMI 995 - AT - Customs

Tribunal allows appeal despite late filing, waives pre-deposit for fair hearing

RADHIKA SPINNING MILLS LTD. Versus COMMR. OF CUS., TKD, NEW DELHI

The Tribunal admitted the appeal despite a 22-day delay in filing, attributing it to the Managing Director's sickness and demise. The appellant's bank ... - Issues Involved:Delay in filing appeal, Encashment of bank guarantee, Pre-deposit requirement, Export obligation fulfillment, Appellant's grievance, Admissibility of appeal, Dispensing pre-deposit, Fair opportunity of hearing.Delay in filing appeal:The appellant filed an appeal with a delay of 22 days, attributing the delay to the sickness and subsequent demise of the Managing Director. The counsel requested the condonation of the delay, emphasizing that the delay was not intentional or mala fide. The Tribunal considered the circumstances and admitted the appeal by condoning the delay.Encashment of bank guarantee and pre-deposit requirement:The appellant's bank guarantee of Rs. 79,95,922/- had been encashed, and an order required a deposit of Rs. 1.00 Crore for the appeal hearing. The appellant had not made the deposit, potentially leading to the dismissal of the appeal. The appellant sought direction to the Commissioner (Appeal) to hear the case without requiring pre-deposit. The Tribunal acknowledged the encashment of the bank guarantee and decided to allow the appeal without insisting on the pre-deposit.Export obligation fulfillment and appellant's grievance:The respondent argued that the appellant had not fulfilled the export obligation, and the factory had been closed for nearly 12 years without taking a clear stance. Despite the respondent's opposition, the Tribunal recognized the appellant's plea that the appeal should not be dismissed without being heard on merit, especially considering the encashment of the bank guarantee.Admissibility of appeal and dispensing pre-deposit:The Tribunal highlighted that while an appeal is a substantial right, it is conditional. Referring to a previous decision, the Tribunal acknowledged the appellant's right to be heard, given the encashment of the bank guarantee. Thus, the Tribunal decided to admit the appeal by condoning the delay and directed the appellant to appear before the Commissioner (Appeals) for a fair hearing without requiring pre-deposit.Fair opportunity of hearing:Considering the peculiar circumstances of the case, the Tribunal directed the appellant to approach the Commissioner (Appeals) for fixing a date of hearing. It emphasized the importance of following the process of justice to grant the appellant a fair opportunity of hearing and expected a reasoned and speaking order to be passed by the Appellate Authority to avoid further grievances.In conclusion, the Tribunal disposed of the application for condonation of delay, stay application, and appeals, emphasizing the importance of ensuring a fair opportunity for the appellant to present their case before the Commissioner (Appeals).