2024 (12) TMI 102 - HC - Customs

Section 28KA Customs Act limits appeal extension to maximum 90 days, 856-day delay cannot be condoned

The Bombay HC dismissed an application seeking condonation of 856 days delay in filing an appeal under Section 28KA of the Customs Act, 1962. The court ... Maintainability of appeal - appeal would lie under Section 130 of the Customs Act, 1962 or under Section 28KA of the Customs Act, 1962? - Application seeking condonation of a delay of 856 days - HELD THAT:- Section 28KA provides that any officer authorised by the board, by notification, or the applicant may file the appeal to the High Court against any ruling or order passed by the authority within 60 days from the date of communication of such ruling or order, in such form and manner as may be prescribed. The proviso to this Section, however, provides that where the High Court is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period so specified, it may allow a further period of thirty days for filing such appeal. This provision suggests that the High Court cannot condone any delay beyond the 30-day period referred to in the proviso. In COMMISSIONER OF CUSTOMS (IMPORT) AIR CARGO COMPLEX NEW DELHI VERSUS AMAZON SELLER SERVICES PVT. LTD. [2022 (1) TMI 1332 - DELHI HIGH COURT] Delhi High Court has held that an appeal filed beyond 90 days from the date of communication of the Advance Ruling Authority’s order cannot be entertained because the delay beyond 90 days cannot be condoned. In this case, the delay is 856 days. Therefore, given the provisions of Section 28KA of the Customs Act, it cannot be condoned - Even otherwise, the reasons given in the Interim Application do not spell out any sufficient cause. The only reasons given are the classification complexity, revenue implication and analysis of legal precedents in similar matters. There is a statement that this delay was due to unavoidable circumstances. Considering that this is a case of inordinate delay, there should have been a much better explanation to persuade us to condone the delay, assuming there are powers to condone the delay in an appeal filed beyond 90 days from the date of the communication. The interim application dismissed without any orders for costs. Issues:Delay condonation for challenging Advance Ruling Authority's order under Customs Act, 1962.Analysis:The judgment deals with an application seeking condonation of an 856-day delay to challenge an order by the Advance Ruling Authority. The applicant argued that the delay was due to complex classification and revenue implications, offering to pay costs. However, the court noted that the appeal should have been filed under Section 28KA of the Customs Act, not Section 130, as contended by the applicant. While the court could condone delays under Section 130 without limit, Section 28KA limited the extension to 30 days.The court referenced a Delhi High Court case where it was held that appeals filed beyond 90 days from the communication of the order cannot be entertained. In this case, the order date was 31 October 2022, with no communication date specified. The court emphasized that Section 28KA allows a 60-day window for filing an appeal, extendable by 30 days only under sufficient cause. The court reiterated that the right to appeal is statutory and subject to limitations set by the law.Citing legal precedents, the court emphasized that inordinate delays frustrate the purpose of advance rulings. The court dismissed the application due to the 856-day delay, finding insufficient cause beyond the complexity of classification and revenue implications. The court highlighted the need for a better explanation for such delays, as seen in a Supreme Court case distinguishing between inordinate delays and shorter ones.Ultimately, the court dismissed the interim application without costs, leading to the dismissal of the accompanying appeal. No costs were awarded, emphasizing the importance of timely appeals and justifications for delay in legal proceedings.