TaxTMI 
TaxTMI 
2018 (8) TMI 1583
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....tment wanted to classify the goods, under CTH 85285900, i.e., monitors others than those used for ADP. As the goods were urgently needed, the appellant paid the duty, as assessed by the Group, under protest. The appellant, as per letter, dated 10/1/2012, explained to the Deputy Commissioner/Assistant Commissioner, Group 5 A, that the monitors were to be used for ADP only. It was stated that the connectivity of monitors with computer was through primary input ports D-sub, HDM 1 ports were provided in the computers, for transfer of encrypted use, for compressed digital high definition data. This was due to advanced technology. These monitors are used in large frame computers, graphical printer. 4. The Assistant Commissioner of Customs, Group 5 A passed the order-in-Original No.18158/2012, dated 18/1/2012, holding that the monitors were correctly to be classified under CTH 85285900 and no exemption from BCD was available. 5. The appeal made against this order was rejected, as per order in Appeal No.1323 of 2014, dated 30/7/2014 and the same was not served on the appellant. The said order-in-appeal was sent to the old address of the appellant. The appellant came to know about the....
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....eal is filed, on the following substantial questions of law:- "1. Whether the Hon'ble Tribunal in the present facts and circumstances has erred in dismissing the appeal as barred by limitation though sufficient cause for the delay was explained by the appellant? 2. Whether the Hon'ble Tribunal has erred in depriving the substantive right of the appellant to file an appeal on mere ground there is violation in procedure? 3. Whether the Hon'ble Tribunal had erred in refusing to condone the delay when the issue involved was that of classification of goods which had direct bearing on the frequent imports made by the appellant of identical and similar goods and when the appellant had not deliberately slept over their rights" 8. Assailing the correctness of the order impugned, Mr.Hari Radhakrishnan, learned counsel for the appellant reiterated the above submissions for the delay. He also invited the attention of this Court to the observation made in OSA SHIPPING PVT LTD., Vs. COMMISSIONER OF CENTRAL EXCISE, CHENNAI {2015 (325) ELT 486 (Mad)}, wherein, this Court, while condoning the delay in filing an appeal before the Tribunal, observed that the ....
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.... goods is physically examined by the docks staff and found that the monitor has three ports for the ADP machine, second is HDMI port and third for DVD port and hence it is concluded by Docks staff that the imported monitor can be used with DVD player. However, importer vide letter dated 14/2/2014 has stated that as per the catalogue and service manual of the product covered by the Bill of Entry there are three ports one is VGA (i.e., computer port), DVD port and HDMI port. In this regard, kind attention is drawn towards Boards Circular No.33/2007-Cus dated 10/9/2007 which clearly makes a distinction between Computer Monitor and TV/Video Monitors. Accordingly, on perusal of the catalogue and product service manual, it is evident that the Technical Specification given matches with the Technical Specification given in the Board's Circular under the head computer monitors. Also, on examination of the sample brought by the importer, it is seen that the goods is having DVI port and not DVD port as claimed by the Docks staff. Also it is observed as per catalogue and explanation given by the party that the goods does not have S-video input connector, built in tuner ca....
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....n the mother Board of the computer. This connectivity to the Mother Board of the computer is given in the user manual of this monitor. At the time of doing art-work, design, animation & graphics work in the computer software, we required precise color and sharp image of full HD resolution to be shown in the monitor. For this the data has to be transferred at very high speed digitally from the computer to monitor, and the DBMI connectivity is doing this function. That is why, the present mother boards are coming with the HDMI ports. For this requirement, the monitors also has to come with the HDMI connectivity. All the TV/Video monitors, are having composite video and component video connectivity ports to connect with the video source. The imported monitors do not have these ports. So, the imported monitors are manufactured to be usable principally with the computers. (ii). From 2003 to 2010 the computer monitors were manufactured with the aspect ratio of 16:10. In 2010, the computer industry started to move over from 16:10 to 16:9 because it is cheaper to manufacture 16:9 display. So, at present, whichever make of the computer monitor, whether with HDMI or only with VGA/DV....
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....on to Docks Officer accordingly. Sd/- 7.3.2014 Rakesh Kumar Agarwal Sd/- 7.3.2014 ADC/Docks 13. Sufficiency of cause is certainly a matter to be considered while exercising discretion. At the same time, Courts/Tribunals are bound to consider, as to whether length of delay or reasons assigned, if not accepted, would cause miscarriage of justice. At this juncture, it is worthwhile to consider few decisions of the Hon'ble Supreme Court. 14. In Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, the Hon'ble Supreme Court has broadly culled out the principles of law to be considered in the matter of condonation and it is suffice to extract paragraph No.21 from Esha Bhattacharjee's case, "21. From the aforesaid authorities the principles that can broadly be culled out are; 21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii) The terms sufficient cause should be understood in their proper spirit, philosop....
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....representing a collective cause should be given some acceptable latitude." 15. Subsequently, after considering the Hon'ble Division Bench judgment of this Court in Tamilnadu Mercantile Bank Ltd., Vs. Appellate Authority, reported in (1990) 1 LLN 457 and decision of the Supreme Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649, in H.Dohil Constructions Company Private Limted V. Nahar Exports Limited and Another, reported in 2015(1) Supreme Court cases 680, Hon'ble Supreme Court, at paragraph Nos.23 and 24, held as follows: "23. We may also usefully refer to the recent decision of this Court in Esha Bhattacharjee [Esha Bhattacharjee v. Raghunathpur Nafar Academy, reported in (2013) 12 SCC 649], where several principles were culled out to be kept in Principles (iv), (v), (viii), (ix) and (x) of para 21 can be usefully referred to, which read as under: (SCCpp.658-59) "21.4(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. 21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a sign....
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.... under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the Respondents not deserving any indulgence by the Court in the matter of condonation of delay. The Respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the Respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered." 16. It is also useful to extract paragraph Nos.14 to 17 of the judgment in Tamilnadu Mercantile Bank's case. "14. We are unable to agree with the reasoning of the learned Judge that no litigant ordinarily stands to benefit by instituting a proceeding beyond time. It is common knowledge that by dela....