1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE WRIT PETITION NO.428 OF 2006 M/s.Hickson & Dadajee Pvt.Ltd. & anr. Petitioners vs. Union of India & ors. Respondents Mr.Ashok D. Shetty for the petitioners. Mr.M.I.Sethna, senior counsel with Mr.Y.R.Mishra, advocate for the respondents. CORAM : R. M. LODHA & J.P. DEVADHAR,JJ. DATED : 9th March, 2006 P.C. Heard Mr.Ashok D.Shetty, the learned counsel for the petitioners. 2. On 18th January, 2002 the Commissioner of Customs (Adjudication) passed an order in original pursuant to the show cause notice issued to them. By the said order, the petitioners were held liable to pay an amount of Rs.12,72,582/- as demanded in the show cause notice along with interest at the rate of 24% per annum from the date of clearance of the goods until the duty was paid. The Commissioner of Customs also imposed penalty of Rs.5,000/- under Section 112(a) of the Customs Act, 1962. 2 3. The copy of the order dated 18th January, 2002 was admittedly received by the petitioner on 21st January, 2002. However, the appeal came to be filed by the petitioners on 26th December, 2003 before the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai. As the appeal was barred by time, the petitioners made an application for condonation of delay. The Tribunal by its order dated 12th April, 2004 rejected the application for condonation of delay and consequently dismissed the appeal. 4. Aggrieved thereby, the petitioners have filed the present writ petition. 5. That the appeal preferred by the petitioners before the Tribunal suffered from delay of 610 days is not in dispute. In their application, the petitioners set out the following facts and circumstances that led to the filing of the appeal belatedly: (a) The impugned show cause notice was issued in the month of January, 1999. In the month of May, 1998, pursuant to the closure of the Applicants’ plants at Mumbai and Boisar (in March 1998) and a hearing before the Board for Industrial and Financial Reconstruction (BIFR), the Applicant company was declared as a sick industrial Companies Act (SICA). (b) At that time, the total number of employees in the Applicant company was 31, of which 18 were clerical staff. The only officer who was conversant with 3 the facts of the issue in dispute and the relevant provisions of the Customs Act, 1962 was one Mr.Vaidya, who was the Commercial Officer in the Company. (c) The said Mr.Vaidya subsequently left the services of the company on or about 30th November, 1998. Thereafter none of the officers in the company was in a position to take over the duties of Mr.Vaidya, nor was any person employed to take Mr.Vaidya’s place. (d) It is submitted that as the Applicants had stopped paying salaries and wages from march, 1998 onwards, none of the officers/staff were attending work on a regular basis. This situation continued till August, 2002. (e) Since July, 2002 the remaining officers of the company were only engaged in the preparation of the Balance Sheets of the company for the earlier years, as directed by the BIFR. Further, pursuant to the hearing before the BIFR held on 19th April, 2001, the Applicants were directed to prepare and file a provisional Balance Sheet for the year ended March, 2001 and prepare a modified proposal for rehabilitation within a period of our weeks. As a result thereof, each and every officer to the company (six in all) was only engaged in the above activity from that date onwards. (f) As a result of the BIFR proceedings, the Applicants were functioning with a skeletal staff, who were not even been paid any remuneration for the services rendered by them. (g) As a result of the BIFR proceedings and the lack of adequate staff, the documents and file of the Applicants were in complete disarray. (h) In terms of the Order dated 19th September, 2002 passed by the BIFR, the new management viz., The Patel Group took charge of the Applicant company in September, 2002. At that time, the new 4 management was completely unaware of the fact that the impugned order had been passed in the month of January, 2002. (i) It was only in the month of May/June, 2003 that the new management commenced recruitment of new employees. This process continued till September, 2003. In the circumstances, despite receiving the first demand notice dated 24th July, 2003, the new management was unable to make any inquiries and take any action in the matter. (j) It is only when the new management received the 2nd Notice dated 1st December, 2003, that it was in a position the materials utilized by them discharging the export obligation under the said Licence. Hence, the delay." 6. The facts preceding the receipt of the copy of the order dated 18th January, 2002 on 21st January, 2002 are neither material nor relevant. It is a fact that the copy of the order dated 18th January, 2002 was received by the first petitioner-company on 21st January, 2002. With whatever staff that the first petitioner had, it ought to have acted diligently in challenging the said order, if it was aggrieved thereby. Rather, it appears that in the garb of the fact that the BIFR proceedings were going on, the first petitioner slept over the matter for months together. As a matter of fact, the Department served a demand notice upon the first petitioner on 24th July, 2003. Even by that time, new management had taken place, but nothing was done. The new management also slept over the matter. At least on receipt of the demand notice 5 dated 24th July, 2003, consequent upon the order passed on 18th January, 2002, the new management ought to have acted swiftly. But they also remained inactive for months together. Then second demand notice was served on 1st December, 2003. It appears that thereafter the steps were taken by the petitioners in filing the appeal. We are afraid, the facts and circumstances set out in the application do not make out sufficient cause for condonation of long delay of 610 days. The Tribunal cannot be said to have committed any error in rejecting the application for condonation of delay and thereby dismissing the appeal. 7. We find no justifiable ground to interfere with the order of the Tribunal. 8. Writ petition is dismissed in limine. (R.M. (R.M. (R.M. LODHA,J.) LODHA,J.) LODHA,J.) (J.P. (J.P. (J.P. DEVADHAR,J.) DEVADHAR,J.) DEVADHAR,J.)