Custom, Excise & Service Tax Tribunal
R Kumaresan vs Commissioner Of ... on 5 July, 2022
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL, CHENNAI
Customs Appeal No.40788 of 2021
(Arising out of Order-in-Appeal No. 74/2021 dated 19.7.2021 passed by the
Commissioner of Customs & Central excise (Appeals), Coimbatore @ Trichy)
R. Kumaresan @ Mukesh Appellant
Flat No. 3, 1 Floor,
st
No. 4 Pranav Apartments
1st Trust Line Street
Mandaveli, Chennai - 600 028.
Vs.
Commissioner of Customs Respondent
NO. 1, Williams Road, Cantonment Trichy - 620 001.
APPEARANCE:
Shri Akshaya R, Advocate for the Appellant Shri Vikas Jhajharia, AC (AR) for the Respondent CORAM Hon'ble Ms. Sulekha Beevi C.S., Member (Judicial) Final Order No. 40276 / 2022 Date of Hearing : 04.07.2022 Date of Decision: 05.07.2022 Brief facts are that specific intelligence was received by DRI, Chennai Zonal Unit that the appellant herein Shri R. Kumaresan @ Mukesh who is the owner of M/s. M.V. Farm is illegally importing exotic birds and animals through Thailand, Myanmar, Indonesia etc. through Myanmar land border and from Bangladesh without declaring it to customs. Based on the above intelligence, the officers carried out search operations in the residential premises of the appellant and also in the farm. Statements were recorded from various persons. Pursuant to the investigation, on reasonable belief, that the exotic birds and 2 animals were smuggled, they were seized under mahazar as per the provisions of Customs Act, 1962 read with allied Acts on 8.10.2018 and handed over to Dr. P.A. Kalaignan, Aringar Anna Zoological Park, Vandalur, Chennai for safe custody and transportation to Aringar Anna Zoological Park for further upkeep and maintenance of the seized birds and animals. Show Cause Notice was issued to the appellant herein as well as to others proposing to confiscate the birds and animals and for imposing penalties. After due process of law, the original authority ordered for absolute confiscation of the birds and animals, confiscation of seized cash of Rs.15 lakhs and confiscation of the vehicles one Mercedes Benz and Toyota Innova which was alleged to be used for transportation of the birds and animals. Penalties of Rs. 20 lakhs under sec. 112(a) and Rs.10 lakhs under sec. 114AA were imposed on this appellant and various penalties were imposed on other persons. Aggrieved by such order, the appellant herein filed appeal before Commissioner (Appeals). The personal hearing of this appeal was fixed on 28.3.2020, 21.1.2021, 15.3.2021, 29.3.2021 and 31.3.2021. The appellant herein attended the personal hearing through his counsel Shri B. Satish Sundar on 31.3.2021. Later, the Commissioner (Appeals) dismissed the appeal filed by the appellant on the ground that it is time-barred.
The present appeal is filed against such order passed by the Commissioner (Appeals).
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2. The learned counsel Ms. Akshaya appeared and argued the matter. She submitted that the Commissioner (Appeals) has dismissed the appeal as time-barred stating that the appeal has been filed beyond the condonable period of limitation as stipulated under first proviso to section 128(1) of the Customs Act, 1962.
3. It is pointed out by her that the Order in Original dated 10.12.2019 was received by the appellant on 13.12.2019. The appeal ought to have been filed within 60 days on 13.2.2020. The Commissioner (Appeals) can condone the delay of one month and the last date for filing the appeal within the condonable period is 13.3.2020. However, the appeal has been filed only on 30.8.2020. The delay occurred mainly because the counsel to whom the appellant had entrusted the filing of appeal had passed away due to COVID 19. She submitted that the appellant had earlier authorized Shri S. Palani Kumar to represent him in the proceedings initiated against him. The said counsel was tested positive for corona and hospitalized due to gravity of the disease. Unfortunately, without yielding to the treatment, counsel passed away on 22.9.2020. A copy of his death certificate is filed along with the affidavit stating the ground for the delay. Since Advocate Palani Kumar was heavily infected with COVID - 19, he could not enter office and he had suggested to seek the help of another advocate. Consequently, the appellant appointed Shri B. Satish 4 Sundar as his counsel to represent him before the Commissioner (Appeals).
4. She submitted that the appeal ought to have been filed on 13.3.2020. The Hon'ble Supreme Court vide suo moto order in Writ Petition (Civil) No. 3 of 2020 dated 23.3.2020 has extended the limitation period in regard to COVID 19 pandemic with effect from 15.3.2020. After excluding the period from 15.3.2020 to 30.8.2020, there is a delay of 2 days in filing the appeal. She submitted that the Commissioner (Appeals) had heard the matter on merits and had not offered reasonable opportunity for countering with regard to his views on time-bar in filing the appeal. The counsel appearing for the appellant had argued the case in detail on merits and was not informed that there is an issue with regard to time-bar. Only after receiving the order, the appellant came to understand of the view taken by the Commissioner (Appeals). The appellant has filed affidavit along with necessary documents to substantiate the contention that the delay occurred because of the death of his counsel due to COVID 19 pandemic. She prayed that lenient view may be taken.
5. The learned AR Shri Vikas Jhajharia appeared for the department. He submitted that the appellant has filed the appeal two days beyond the condonable period for filing the appeal. The Commissioner (Appeals) has rightly dismissed the appeal. Further, they have not filed any application for condoning the delay. He prayed that the appeal may be dismissed. 5
6. Heard both sides.
7. The issue is whether the order passed by the Commissioner (Appeals) rejecting the appeal on the ground of limitation is legal and proper.
8. The Order in Original dated 10.12.2019 was received by the appellant on 13.12.2019. The Commissioner (Appeals) can condone the delay upto one month for filing the appeal. If such time is also taken into consideration, the appeal ought to have been filed on or before 13.3.2020. The appeal has been filed only on30.8.2020. As argued by the learned counsel for appellant, the Hon'ble Supreme Court has extended the limitation with regard to COVID - 19 with effect from 15.3.2020. Thus, from 13.3.2020 to 15.3.2020, there is a delay of two days beyond the condonable period of Commissioner (Appeals).
9. The appellant has filed an affidavit stating that he had entrusted Advocate S. Palani Kumar to represent him in the proceedings. The said counsel passed away on 22.9.2020. It is affirmed that he was tested positive due to COVID - 19 (Corona). The death certificate of the said counsel has also been produced. From the affirmation made in the affidavit as well as the death certificate produced by the appellant, it is established that the appellant could not file the appeal within the time stipulated due to reasons beyond his control and mostly due to the death of his counsel who was affected by corona. Taking these peculiar facts into consideration, I am of the view that the delay of 2 days in 6 filing the appeal ought to be considered leniently. The impugned order rejecting the appeal on the ground of time-bar against this appellant is set aside and remanded to the Commissioner (Appeals) who shall hear the appeal on merits. It is specifically noted that the said view of condoning the delay is taken only due to the peculiar facts of this case and shall not serve as a precedent. The appeal is allowed and remanded to the Commissioner (Appeals) for hearing and disposing on merits of the case.
(Pronounced in open court on 5.7.2022) (SULEKHA BEEVI C.S.) Member (Judicial) Rex