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24-mca-92-2020

IN THE HIGH COURT OF BOMBAY AT GOA

MISC. CIVIL APPLICATION NO.92 OF 2020

IN

STAMP NUMBER MAIN NO.2785 OF 2019

(CUSTOM APPEAL)

JOHN MIRANDA,

BANDRA MUMBAI – 400 050.

... APPLICANT

Versus

THE COMMISSIONER OF

CUSTOMS & CENTRAL

EXCISE, PATTO, PANAJI, GOA.

…. RESPONDENT

Mr. C.A. Ferreira with Mr. Rajiva Srivastava, Advocates for the

Applicant.

Ms. Asha Desai, Senior Standing Counsel with Mr. Saichandra

Talamraja, Advocate for the Respondent.

CORAM: REVATI MOHITE DERE &

M. S. JAWALKAR, JJ.

DATE : 29^th November, 2021

ORAL ORDER : (Per M.S. Jawalkar, J.)

Present application is filed for condonation of delay

in filing appeal under Section 130(2A) of the Customs Act,

1962.

2.

Applicant submits that an appeal was filed by the

applicant before the CESTAT, West Zone, Mumbai against the

original order of the Commissioner of Customs dated

03.06.2005. He submits that the said appeal came to be

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dismissed on 16.11.2016. According to the applicant, the

Department had also filed an appeal, however, the applicant

was not served with any notice of the same. The said appeal

also came to be dismissed.

3.

As there were apparent errors, rectification

applications were filed in both the appeals. As per legal advice,

the petitioner also filed a Writ Petition before the Bombay High

Court on 05.10.2018 bearing no.3112 of 2018. The said Writ

Petition came to be disposed of vide order dated 06.06.2019

allowing the petitioner to withdraw the Writ Petition with

liberty to take appropriate proceedings. It is stated that some

period was consumed in seeking clarifications from the

advocate. Sometime was also consumed in obtaining certified

copies.

4.

According to the applicant, if the said period is

excluded, i.e. the time taken in pursuing the remedies before

the High Court and 180 days available to file appeal, the delay

would be of 420 days. It is submitted that if the delay is

calculated after rejection of the application for rectification by

excluding the time spent in the High Court and appeal period,

the delay would be of 127 days in filing the present custom

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appeal. Thus, it is submitted that the delay occasioned in filing

the appeal is neither deliberate nor intentional, but for bonafide

reasons as stated aforesaid and hence, the delay be condoned.

5.

Respondent vehemently opposes the application on

the ground that there is no justifiable cause for condoning the

delay.

6.

We have heard both the parties at length. We are

satisfied that the delay needs to be condoned for the reasons

stated in the application, as the applicant was pursuing a

remedy before this Court in Writ Petition under a bonafide

belief that his petition was maintainable. In the peculiar facts,

we deem it appropriate to condone the delay caused in filing

the aforesaid appeal, subject to payment of costs.

7.

Accordingly we proceed to pass the following order :

O R D E R

(i)

Application is allowed.

(ii)

Delay in filing Custom Appeal under Stamp

Number Main No.2785 of 2019 is condoned

subject to cost of ₹15,000/- to be paid within two

weeks from today to Apna Ghar, Merces, Panaji.

(iii)

Registry is directed to register the appeal

after due compliance as above.

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(iv) Accordingly, the application stands disposed

of.

8.

All parties to act on the authenticated copy of this order.

M. S. JAWALKAR, J. REVATI MOHITE DERE, J.

NH

NITI K

HALDANKAR

Digitally signed by NITI K

HALDANKAR

Date: 2021.12.01 16:21:10

+05'30'