2013 (7) TMI 760 - HC - Customs

Appeal dismissed as time-barred for delay in filing, conflicting jurisdiction claims rejected

The High Court dismissed the appeal as time-barred due to a delay of two years and one hundred sixteen days in filing. The appellant's justification of ... Condonation of delay – assessee filed the application for condonation of delay of 216 in filing the appeal - Held that:- the delay in filing the appeal has not been properly explained and the plea of bonafide pursuing the appeal before Delhi High Court has no substance - There was no confusion as to the jurisdiction on the part of the assessee - the firm of which assessee was one of partners had filed an appeal before the Court and the appeal was disposed of and the matter was carried by the firm unsuccessfully before the Apex Court - This was also a strong circumstance which belies the contention of assessee that he was bonafide pursuing his remedy by way of appeal – court relied upon Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and another, (2011 (11) TMI 62 - SUPREME COURT OF INDIA). There was no reason as to why the memo of appeal was not taken back by the counsel or the assessee shortly thereafter – they should had taken steps to get back the memo of appeal - The delay in between 22nd November, 2011 to 5th of March, 2012 is also not properly explained – application rejected – decided against the assessee. Issues:Delay in filing the appeal before the High Court and the justification for seeking condonation of the delay.Analysis:The appeal was filed with a delay of two years and one hundred sixteen days against the order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi. The appellant claimed that the delay occurred due to initially filing the appeal before the Delhi High Court, which lacked territorial jurisdiction. The appellant argued for the condonation of delay based on the decision in M/S Canon Steels P. Ltd Vs Commissioner of Customs. However, the respondent contended that the act of filing the appeal before Delhi High Court was unjustified and amounted to forum hunting. The respondent relied on the judgment in Ketan V. Parekh Vs. Special Director, Directorate of Enforcement to support their stance against condoning the delay.The appellant's counsel argued that there was confusion regarding the territorial jurisdiction for filing the appeal, leading to the appeal being filed in Delhi instead of Allahabad. However, the court found no merit in this argument as the appellant's firm had previously filed an appeal before the Allahabad High Court, which was later taken to the Apex Court unsuccessfully. This fact undermined the appellant's claim of confusion regarding jurisdiction.The court also noted that the explanation provided by the appellant for filing the appeal in Delhi High Court was an afterthought and lacked credibility. The delay in taking back the memo of appeal from Delhi High Court after the jurisdiction issue was raised further weakened the appellant's case for condonation of delay. The court concluded that the delay in filing the appeal was not adequately explained, and the claim of bonafide pursuit of remedy before Delhi High Court was unsubstantiated. Consequently, the application for condonation of delay was rejected, and the appeal was dismissed as time-barred.