CUSAP/22/2009 of M/S ESS KAY INTERNATIONAL Vs COMMISSION OF CUSTOMS, AMRITSAR on 24 December 2009

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest?

M.M.KUMAR, J (Oral)

Learned counsel for the appellant has argued that appellant is aproprietor firm and the affairs of the firm is run by husband of the proprietor in hiscapacity as Manager.

Notice of motion.

Mr. H.P.S.Ghuman, Advocate, who is present in Court, has acceptednotice on behalf of the respondent. Two copies of paper books have been handedover to him. With the consent of learned counsel for the parties, both the appeals*are taken up for final disposal.

These appeals are directed against order dated 21.8.2009 passed by theCustom Excise & Service Tax Appellate Tribunal, New Delhi (for brevity 'theTribunal'). An application for condonation of 73 days of delay in filing of appealwas filed before the Tribunal but the same was dismissed. It has come on recordthat appellant-firm is proprietorship concern with Mrs. Vishakha Arora as its soleProprietor. The legal and other matters are looked after by her husband Sh.Rajinder Arora in his capacity as Manger of the firm. He was ill from 2.3.2009 to25.5.2009. The appeal was required to be filed within three months from the dateof receipt of a copy of the order. It has remained undisputed that copy of the order CUSAP No. 22 of 2009

has been received on 3.1.2009 and the appeal could not have been instituted on orbefore 2.4.2009. The appeal was actually instituted on 15.6.2009. In the processdelay of 73 days has occurred.

The Tribunal has taken the view by observing that Sh. Rajinder KumarArora, Manager of the applicant-firm was not the only person for filing of appeal.In paragraph – 2, the Tribunal has pointed out that there was no explanation as tohow the appellant was dependent on the Manager wholly and exclusively.However, in the absence of the husband of the proprietor, who was looking afterthe affirms of the firm, it might have been difficult for the proprietor-Mrs.Vishakha Arora to institute an appeal. Therefore, we find that there is sufficientground to condone the delay. In such matter even otherwise, a liberal approachhas to be adopted and the matter deserves to be decided on merits.

In view of above, the order dated 21.8.2009 of the tribunal is set aside.Delay of 73 days in filing of appeal before the Tribunal is condoned and Tribunalis directed to decide the appeal on merits.

A photocopy of this order be placed on the records of connected case.

(M.M.Kumar) Judge

(Jaswant Singh)December 24, 2009 Judgetripti *1.CUSAP No. 22 of 2009, M/s Ess Kay International, Amritsar Vs. Commissioner of Customs, Amritsar.Commissioner of Customs, Amritsar.

2. CUSAP No. 23 of 2009, M/s Ess Kay International, Amritsar Vs. Commissioner of Customs, Amritsar.Commissioner of Customs, Amritsar.