AI Drafter 
TaxTMI 
TaxTMI 
2025 (4) TMI 320
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....ation of moisture content in the import consignment which was the key to the determination of the nature, character and quantity (wt.) of the invoiced goods having a bearing on the import duties payable. 3. It may be pertinent to mention here that the appellant is a premier Govt. of India Enterprise and that has been undertaking import of coking coal and limestone at Paradeep port on a regular basis. For the purpose they have also entered into long term agreements with their foreign suppliers which inter alia provides for sampling and analysis of the moisture content leading to determination of the quantity shipped/imported, thereby bringing about necessary adjustment in the tonnage of the goods received. The price of the imported goods is determined on the basis of the quantity imported (determined after adjustment of moisture content) and hence goods were assessed provisionally at the time of import as a matter of practice, for want of the sampling report. Based on the sampling undertaken the appellants were put to notice based on the difference in the departmental testing of the representative sample drawn at the time of import and the Load Port Analysis Report. Following the....
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....D/77426/2019 C/77412/2019 06.12.2018 110/CUS-CCP-GST/2018 dated 28.11.2018 73670 21 C/COD/77427/2019 C/77413/2019 06.12.2018 119/CUS-CCP-GST/2018 dated 29.11.2018 140067 22 C/COD/77428/2019 C/77414/2019 06.12.2018 124/CUS-CCP-GST/2018 dated 29.11.2018 11728 23 C/COD/77429/2019 C/77415/2019 06.12.2018 107/CUS-CCP-GST/2018 dated 28.11.2018 29411 24 C/COD/77430/2019 C/77416/2019 06.12.2018 120/CUS-CCP-GST/2018 dated 29.11.2018 129010 4. The appellants were required to therefore pay the differential customs duty determined under section 28 along with interest as applicable under section 28AA/28AB of the Customs Act. In appeal proceedings the orders passed by the lower authority were upheld. It is against these Orders-in-appeal that the appellant is before us in the matter. 5. A snapshot of the delayed filing of appeals as per table below is indicative of delays ranging from five months (three cases) to close to a year (six cases) with a majority of cases falling in between nine to ten months of delayed filing of appeal:- TABLE - II COD NO./APPEAL NO. Last Date of filing Appeal Actual f....
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....etitioner contacted each other. The appellant submits that this was on account of the remoteness of the place. Further, when the entrusted lawyer returned to Kolkata on April 20, 2019, as indicated in the miscellaneous application, the subject case files could not be traced out and were reportedly misplaced. The appellant has further mentioned in the COD petition that due to cyclone 'Fani' that hit the coast and made landfall at Puri on May 3, 2019, operations of the appellant were badly impacted. Another reason cited in the COD petition is ascribed to "manpower crisis" stating that being a Government enterprise and in terms of the policy adopted by Central Govt., the petitioner was facing manpower crisis and was therefore unable to heed to litigation matters. The COD petition further says that frequent transfer of the employees also created a big problem for the appellant, as every new person started to collect related documents from the beginning stage and submits that such documents could only be collected towards the end of October 2019 which were thereafter verified by the officials and handed over to another Advocate, who in turn took a few days to prepare and file the appeal....
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....t with their lawyers, the files were not traceable. The appellant had to all over again start the process of collecting and verifying the concerned records, which process took them nearly six months. Even the argument of cyclone Fani does not justify the gross delay, as the appeals have been filed after several months of the cyclone striking the coastline of Orissa. 8. Thus, we are not influenced with the explanation furnished for lapse of such long spell of time, when all the documents concerned required were the appellant's own documents and well available with them and in their possession. To tide over their failure to act in time, the appellants have made out a basket full of explanations, smearing it with the universal contention concerning manpower constraints. It is a sorry state to note from the COD petition, that the appellant were "unable to heed the litigation matter" which clearly reflects upon their priorities and seriousness in attending to court related work and the respect for statutory timelines. There is a clear and unexplainable failure on the part of the appellant. While we are aware that nobody stands to gain by filing a delayed appeal, we cannot look aside ....
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....lain and account for each day's delay caused. We do not find sufficient alacrity and diligence demonstrable at the appellant's end in pursuit of legal remedy. While each case of condonation of delay would rest on the peculiar set of facts of the said case, for sake of records we would like to take a cue from the apex court's decision in the case of Commissioner v. Coastal Energy Pvt.Ltd. [2016 (7) TMI - 1383 (SC)], where too even the apex court had disallowed the appellants appeal for reasons for lack of a proper explanation furnished for a delay of 311 days in order to buttress our contention. 11. The hon'ble apex court in the case of Ramegowda v. Special Land Acquisition Officer, Bangalore [1988 (2) SCC-142] had clearly stated that negligence, gross inaction, lack of bonafides of the party/counsel could be no reasons to expose the other party to a time barred appeal. 12. In the case of Perpetual Power v. C.C.E., Bangalore [2001 (129) E.L.T. 531 (Tribunal)], this Tribunal chose not to condone a delay of nearly five and a half months, even though the unit was closed and the concerned Director had resigned and left. The Tribunal found the arguments made, as neither substantial....