Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Wyeth Labs Limited on 28 February, 1988
Equivalent citations: 1988(16)ECC83, 1988(17)ECR123(TRI.-DELHI), 1988(35)ELT655(TRI-DEL)
ORDER V.P. Gulati, Member (T)
1. By this application the Collector of Customs has pleaded for condonation of delay for filing the appeal beyond the period of three months as stipulated under Section 129A(2) of the Customs Act.
2. Brief facts of the case are that order of the Collector of Customs (Appeals) Bombay bearing No. S-49/598/8 Cl. dated 31-3-1984 is stated to have been received as per C.A. 3 Form by the Collector on 28-4-1984. The appeal in the Tribunal against this order of Collector (Appeals) has been received in the Registry on 12-11-1984. The respondents by an affidavit filed on the 8th May, 1987 and received in the Registry on 23rd June 1987, among other things, have stated that there was a delay of 113 days in filing the appeal over that prescribed under Section 35B of the Central Excises & Salt Act, 19**. In fact, the appeal has been filed under Section 129A(2) of the Customs Act. However, on point regarding the delay, the respondents plea is that it has been filed beyond time by 113 days. In the condonation of delay application filed, the Appellant Collector's plea among others is that the impugned order was not served on the Collector of Customs but the same came to his notice only on 30-9-198* and taking that date into reckoning there was no delay in filing the appeal. In the affidavit filed on behalf of the Collector, the circumstances under which the order came to his notice are also set out. The Date Chart given in the application in this regard is reproduced below :
Order-in-appeal received by the adjudicating authority on 20-7-84 File sent to dealing Group on 31-7-84 Scrutiny by the Group and obtainment of Dy. CC opinion on 1-8-84 to 22-9-84 Submission to Collector with a proposal for filing the appeal 20-9-84 Collector approves the proposal on 30-9-84 File received in T.C.U. for preparation of appeal 3-10-84 Appeal prepared and despatched on 6-11-84
3. Learned 3DR for the Department pleaded that in fact the order of the Collector (Appeals) was received by the concerned Assistant Collector (Adjudication) on 20th July, 1984 and the appeal had been filed in the Tribunal Registry on 12-11-84 and stated that there was only a delay of 22 days. He attempted to explain the delay by stating that the matter was referred to the dealing group and the concerned officer in the Group thought it desirable that the opinion of the Deputy Chief Chemist be obtained in the matter. He pleaded that the Group Appraiser, who dealt with this matter was also engaged in doing current work and being so pre-occupied could not give all his attention to the matter relating to the filing of the appeal in this case. In this connection he cited the case of Indian Telephone Industries v. CEGAT and drew our attention to the reasons given by the appellant in that case and the decision of the Hon'ble Court. Relevant extracts in this regard are reproduced below for convenience of reference :
"Applicant had pointed out that it is a public sector undertaking and had to take advice from its Administrative Ministry of Communication for deciding the matter. For this purpose Chairman of the applicant7Company wrote to the Department of Telecommunication on 3rd July, 1986 and since no reply was received, a reminder dated 16th July, 1986 was sent to the Department -of Telecommunication. The Ministry of Communication vide their letter dated 28th August, 1986 conveyed its approval to the petitioner for contesting the matter and it was also pointed out in the communication of Ministry of Communication that the issue in question should be discussed with other public sector undertakings, and, if possible, the applicant should co-ordinate again with them. It is also mentioned in the application for condoning the delay that in the meanwhile D. Subramaniam, the Chief Regional Manager, Madras, was transferred to Delhi vide Circular dated 23rd August, 1986 and K.S. Krishnamurthy got additional charge of looking after the work of the Chief Regional Manager, Madras also. This involved various administrative functions also such as sales, servicing, looking after the twelve subordinate offices situated in the States of Andhra Pradesh, Tamil Nadu and Kerala. It was also pointed out that his work also included arrangements and preparations for 2nd Parliamentary Committee of Members of Parliament on implementation of the 'Official Language' between 8-9-1986 and 10-9-1986. It is also pointed out that on 13th September, 1986 K.S. Krishnamurthy took over additional charge as Chief Regional Manager, Madras. The various difficulties which he had to face are mentioned in paras (e) and (f) of para 5 of the affidavit filed in appeal. These facts are not disputed. But the fact remains that these facts explain the delay in filing the appeal after the expiry of period of limitation. In view of decision of Hon'ble the Supreme Court in the case of Collector of Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors., 1987 (28) ELT 185 (S.C.), we find that there was sufficient cause for condonation of delay in filing the appeals."
The delay in this case in filing the appeal was 40 days. His attention was drawn to the fact that the respondents had indicated that there was a delay of 113 days based on the receipt of the order on 28-4-1984 as shown in C.A. 3 Form. He pleaded that the date of receipt of the order could not be taken to be 28-4-1984 as the order was not served on the Collector of Customs on this date. He conceded that, no doubt, the Collector of Customs had issued a standing order by which a direction has been given for receipt of the appellate order by the (Tribunal/Coordination Unit). He stated that the statutory requirement of service of the order on the Collector in terms of Section 128A(5) as required in law could not be dispensed with by this standing order and in this connection he cited the case of Collector of Customs, Bombay v. Thermax Private Limited, Pune wherein the West Regional Bench has negatived the plea that the service of the order contrary to the statutory requirement on the Assistant Collector (TCU) in terms of the standing order No. 6756, dated 25-6-1981 as amended by standing order No. 6772, dated 29-10-1982 which on a later date was amended by S.O. 6939, dated 24-1-1986, could be taken to be service on the Collector. He pleaded in view of this decision of the West Regional Bench, the legal position accepted should be as in order No. 60/86-WRB of the West Regional Bench. It was pointed out to him that there are contrary decisions given by Special Bench of this Tribunal and which were obviously not brought to the notice of the West Regional Bench. He had no submission to make in that regard. He, however, pointed out that in view of the Supreme Court decision in the case of Collector of Land Acquisition, Anantnag v. Mst. Katiji and Ors. 1987 (28) ELT 185 (S.C.), the delay should be condoned.
4. The learned Adv. for the respondents pointed out that the judgment of Delhi High court cited supra by the learned DDR was distinct from the facts of this case. He stated that the circumstances existing in that case were not the same as in the present case. He pleaded that even in the latest affidavit filed by the Collector, the file after approval by the Collector, had been sent to the Tariff Coordination Unit on 3-10-1984 and the appellant took still a long time to submit the appeal in the Registry of the Tribunal. He pleaded that before any delay could be condoned, it should be shown that there was sufficient cause and due diligence had been shown by the appellant. He cited in this regard the judgment in the case of National Chemical Industries v. Collector of Central Excise, 1986 (26) ELT 151 and also the judgment of the Supreme Court in the case of State of West Bengal v. Howrah Municipality AIR 1972 SC 749. He pleaded that before any liberal view in regard to the condonation of delay as held in the case of Collector Land Acquisition v. Mst Katiji referred to supra is taken there should be sufficient cause for the same. He pleaded that sufficient cause has not been shown in the case. He also pleaded that in that case delay involved was only 4 days and in the present case delay involved is of 113 days. He pleaded that the appellant had not shown any sense of urgency in the matter of filing the appeal as seen from the date chart submitted. He cited the orders of the Tribunal No. COD/731/86-C in appeal No. E/2088/C, No. Misc. 185/86C, in this regard.
5. We observe from the record that the order of the Collector (Appeals) has been endorsed to the Assistant Collector (T.C.U.) Customs House, Bombay as also to the Assistant Collector (Refund). The date chart submitted by the applicant covers the period 20-7-1984 to 6-11-1984 when the appeal is stated to have been despatched. It has been set out in the date chart that the order-in-appeal was received by the adjudicating authority on 20-7-1984. The date chart obviously has been given with reference to the order endorsed to Assistant Collector (Refund). There is no mention in the prayer for condonation of delay by the Assistant Collector (Tribunal Co-ordination Unit) as to the fate of the order endorsed to Assistant Collector (T.C.U.). There is no whisper in explanation given as to what finally became of this copy of the order. We find in the C.A. 3 Form that the date of receipt of the impugned order is shown as 28-4-1984. Inasmuch as two copies of the order were endorsed to the two Assistant Collector, the order received on 28-4-1984 has to be taken to be the order which was endorsed to the Assistant Collector (T.C.U.).
6. Learned JDR for the Department has pleaded that in terms of the statutory requirement, the Collector (Appeals) under Section 128A(5) of the Customs Act has to send one copy of the appellate order to Collector, and since this order came to the notice of the Collector on 30th September, 1984 when the file was put up to him for approval for filing the appeal, this should be taken the date of communication of the order as held by the West Regional Bench in the case of Principal Collector of Customs, Bombay v. Thermax Private Limited, Pune, 1987 (27) ELT 81 (Order No. 60/86-WRB, copy supplied). The West Regional Bench have held as under in this regard :
"We have considered the submissions made on both the sides and also perused the Standing Orders submitted by the applicant. These Standing Orders are No. 6756, dated 25-6-1981, No. 6772, dated 29-10-1982, No. 6816, dated 25-1-1985 and No. 6839, dated 24-1-1986. A study of these orders shows that these had been issued keeping in view the provisions of Chapter XV of the Customs Act as incorporated by the Finance Act No. 2 of 1980. A special unit was created to co-ordinate the work relating to the filing of appeal before the Appellate Tribunal under S.O. No. 6756, dated 25-6-1981 consisting of one Assistant Collector, one Appraiser, one Examiner, one P.O. (S.G.), one Stenographer, one Upper Division Clerk and one LDC. Pending bringing into force of new Chapter XV of the Customs Act this unit was entrusted with the responsibility of considering reviews of the Appellate Collector's orders. It also contained the Collector's directions that with effect from 1-4-1981 the Appellate Collectors should serially number the Appellate Orders and issue one copy to the adjudicating officer and another copy to the T.C.U. With setting up of the Tribunal in October, 1982, the provisions of the S.O. were amended by the S.O. No. 6772, dated 29-10-1982. This incorporated procedure for filing appeals to the Tribunal against the orders of Collectors of Customs (Appeals). Time limits were stipulated at each stage for handling the papers. But the statutory requirements of Section 128A(5) were lost sight of and the situation as prevailing before the setting up of the Tribunal continued to prevail. The lacuna in the law was realised from the Ministry's telex F.No. 78, dated 3-1-1986 and this was rectified in the S.O. 6839, dated 24-1-1986. Even though therefore the Standing Orders were a creation of the Collector, they were not in consonance with the requirements of Section 128A(5) with the result that the Collector was deprived of his statutory right of filing an appeal to the Tribunal. There is nothing in the standing Orders which would show that the Tribunal Coordination Unit was set up as the agency by the Collector to receive the orders of the Collector of Customs (Appeals) on his behalf. Therefore we are not inclined to accept the contention of Kotwal that this unit acted as the agency of the Collector to receive the Appellate orders which was a ministerial function only. The statement of Kum. R. Shakuntala, Assistant Collector in her affidavit dated 10-3-1986 before the Hon'ble High Court brings out that the order of the Collector (Appeals) was received by the respondents on 8-8-1985. It is more appropriate to interpret this statement that the order of the Collector (Appeals) was received by the adjudicating Assistant Collector 'K' Group on 8-8-1985 since Kum. Shakuntala was deposing on behalf of the respondents which included Union of India. Possibly, in this context, only the two dates of the receipt of the order namely 9-8-1985 and 8-8-1985 can be understood. The learned Adv. of the respondents has drawn our attention to the correspondence which ensued between the importers, their agents and the Custom House and Pune Customs authorities in the course of which copies of the appellate order were furnished to the Assistant Collector of Customs ' Bombay twice. But this has been nowhere mentioned that they served a copy of this order on the Collector of Customs. It is therefore seen that the copy of the appellate order was never received by the Collector and therefore he could not take steps to file this appeal in time, which was his statutory right. In this view, we find that there is no delay in the presentation of this appeal and that the same is filed in time."
We observe that the similar issue had come up before the Special Bench of this Tribunal in the case of Collector of Customs, Bombay v. S.B. Plastic Industries and Ors., 1986 (26) ELT 124 (Trib.) and the Tribunal in that case have held that the receipt of the order in the Tribunal Coordination Unit in the office of the Collector of Customs should be taken as date of the receipt of the order by the Collector concerned for the purposes of limitation under Section 129 of the Customs Act. This decision of the Tribunal has been followed by the Bench of the Tribunal in the case of Collector of Customs, Bombay v. Ruby Product Limited, Bombay, 1988 (11) ETR 60. We observe that the decision of the Three-Member, Special Bench in the case of S.B. Plastics referred to supra was not brought to the notice of the West Regional Bench. The Tribunal in that decision has observed as under :
"A simple perusal of both the orders shows that the Collector of Customs, Bombay in para 2 of his order dated 25-6-1981 had written that the appellate Collector will send one copy of the order to the adjudicating authority and other direct to the Tribunal Coordination Unit. Thus the Assistant Collector, Coordination Unit was acting as an agent of the Collector. Section 153 of the Customs Act 1962, which relates to the service of the order or decision, is reproduced as under :
"153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served -
(a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent, or
(b) if the order, decision, summons or notice cannot be served in the manner provided in 'C'.(a) by affixing it on the notice-board of the customs house."
A.S. Sunder Rajan, the learned JDR cited the judgment under the Income Tax Act, 1961. He laid special emphasis on the case of Hindustan Development Corporation v. ITO, Spl. Circle 3 and Ors. reported in 118 ITR 873. Headnote from the said judgment is reproduced as under :-
"An appeal was preferred to the Tribunal by the Commissioner. The ITO had obtained a copy of the order of the AAC under executive instructions from the Commissioner on April 7, 1972. The AAC had communicated a copy of his order to the CIT in compliance with Section 250(7) on May 12, 1972. The appeal was filed on July 4, 1972. It was contended on behalf of the assessee that as the ITO obtained the copy of the order of the AAC under a direction from the Commissioner, the ITO had been constituted the agent of the Commissioner and accordingly limitation for the filing of appeal started running from April 7, 1972, and the appeal was barred by limitation. The Tribunal accepted the contention made on behalf of the assessee and held that the time for filing the appeal should be computed from April 7, 1972. The Tribunal accepted the contention made on behalf of the assessee and held that the time for filing the appeal should be computed from April, 1972. The Tribunal however condoned the delay in filing the appeal and admitted. The assessee filed a writ petition challenging the propriety of the Tribunal's order.
Held the instruction of the Commissioner did not show that the Commissioner authorised the ITO to receive a copy of the order of the AAC under Section 250(7) of the Act nor was there anything to show that the Commissioner appointed the ITO his agent. There was also no material to show that the AAC delivered a copy of his order to the ITO treating the latter as the agent of the Commissioner. On the other hand, the fact that in spite of the delivery of a copy of his order to the Commissioner in compliance with Section 250(7) clearly indicated that the AAC did not deliver the copy of the ITO as agent for the Commissioner. The Commissioner obtained a copy of the order under Section 250(7) only on May 12, 1972. Hence, the appeal was not barred by limitation."
The Hon. Calcutta High Court had come to this conclusion On the ground that there was no authorisation by the Commissioner of Income Tax to the Income Tax Officer to receive orders. In the matters before us, there are specific orders issued by the Collector of Customs, Bombay vide Order No. 6756, dated 25-6-1981 and 25-1-1985 wherein it was written by the Collector to the Collector of Customs (Appeals) to send one copy of the order to the adjudicating authority, other to the Coordination Unit in the office of the Collector of Customs. The Collector of Customs obviously does not receive the papers personally. Instead of sending the papers in the Receipt Section of the Collectorate, the Collector (Appeals) has sent to the Coordination Unit of the Tribunal in his office. For all purposes, the Assistant Collector, Coordination Unit had acted as agent of the Collector and now he cannot say that service on the Assistant Collector, Coordination Unit was no service on the appellant."
Following the ratio of the decision in the case of S.B. Plastics and subsequent decision in the case of Ruby Products, we hold that the service of the order on the Collector in terms of Section 128A(5) read with Section 153 of the Customs Act was complete, with service of the order on the Assistant Collector (TCU) and it was done on the date when the Assistant Collector (T.C.U.) received the order and which date as held above, based on the entry in the C.A.3 Form is 28-4-1984. The delay therefore in the present case has to be reckoned with reference to this date. We observe from the Collector's application for condonation of delay as also in the pleas made before us that it has not been explained as to what happened to the order received by the Assistant Collector (TCU) and what action was taken on that copy of the order. It has to be held that on that copy of the order which met the statutory requirement of service on the Collector no action was taken. We observe that while it is not incumbent on the Collector to explain the nature of the action taken on the order received by him within the statutory period of three months permitted by law for filing the appeal, it is desirable on the part of the Collector to explain that there was due diligence on the part of the Revenue to process the papers. Inasmuch as there is no explanation forthcoming as to the action taken on that copy of the order received by the Assistant Collector (TCU) it has to be held that no action was taken by Revenue during that period for processing the papers for the purpose of filing the appeal. We observe that while the order had been received by the Assistant Collector (TCU) on 28-4-1984, it is not understandable as to why the same order should have been received by the adjudicating authority, i.e., Assistant Collector (Refund) on the 20th Duly, 1984. Copy of the Order-in-Appeal filed by Revenue shows endorsement with a number as 28/4. No evidence has been produced before us that in fact this order was received by the Assistant Collector (Refund) on the 20th 3uly, 1984. The Revenue has not made any attempt to reconcile this discrepancy in the matter of receipt of the order which shows the date as 28-4-1984. In these circumstances, therefore, only inference that can be drawn is that even the adjudicating authority had received this order on 28-4-1984. It is seen from the date chart that the said adjudicating authority forwarded the order to the dealing Group on 31-7-1984 and the period from 1-8-1984 to 22-9-1984 has been accounted for as for scrutiny by the Group and obtaining of the Deputy Chief Chemist's opinion and submission of paper to Collector with proposal for filing the appeal. No papers have been produced before us as to the course of the scrutiny and time taken by the Deputy Chief Chemist. A period of over seven weeks was consumed in scrutiny and getting this opinion. Nothing has been produced before us to show that this much time was indeed required for the purpose of scrutiny and the submission of opinion by the Dy. Chief Chemist. The date chart submitted and course of the handling of file does not reveal any sense of urgency on the part of the Collectorate for expediting filing of the appeal when the period of limitation had already run out. There is no plea from the revenue nor any fact on record to show that in fact the revenue was acting under the misapprehension that the appeal could be filed only with reference to the date of the perusal of the file by the Collector and not with reference to the receipt of the order in the Tribunal Coordination Unit. The file was, it is seen, approved for filing the appeal by the Collector on the 30th September, 1984 and the file was received in the Tribunal Coordination Unit for preparation of appeal on 3-10-1984. It is seen even after that it took about 5 weeks to file the appeal. We observe nothing has been produced before us to show that there was any hold-up at any level when the papers for filing the appeals were being processed or somebody had been remiss in expediting the filing of the appeal. The whole matter it appears to us has been dealt with in a very routine manner. The decision of the Supreme Court in the case of Mst Katiji and Ors., 1987 (28) ELT 185 SC does not help them. Taking note of the decision this Tribunal in the case of Collector of Central Excise, Bombay v. Caprihans India Ltd. [1988 (33) ELT 110 (Trib.)] have held as under :
"We have carefully considered the submissions made by both the parties. It is true that Hon'ble Supreme Court in Collector, Land Acquisition Anantnag and Anr. v. Mst Katiji and Ors. [1987 (28) ELT 185 (S.C.) observed that reference to Section 5 of Limitation Act, 1963 which is analogous to Sub-section (5) of Section 35-B of Central Excises and Salt Act, 1944 that the expression sufficient cause emploved by the Legislature. is adequately elastic to apply ^bq,\n. the law in a meaningful manner to subserve the ends of justice -that being the life purpose for the existence of the institution of courts. They also added that it is common knowledge that this Court (Supreme Court) has been making a justifiable liberal approach to matters instituted in the Court. They added but the message does not appear to have percolated down to other Courts in the hierarchy. Further observing that such a liberal approach is adopted on the six principles laid down and reproduced below -
(1) "Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
(3) 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay. The doctrine must be applied in a rational common sense pragmatic manner.
(4) When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(5) There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
(6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
"Besides the Supreme Court decision (supra) on which Smt. Chander has placed reliance, there are other decisions of the Supreme Court on Section 5 of Limitation Act, 1963 - an analogous provision to Sub-section (3) of Section 35B of Central Excises & Salt Act, 1944. Dealing with the provision in Ramlal and Ors. v. Rewa Coalfields Ltd. [AIR 1962 S.C. 361], the Supreme Court inter alia held as under -
(7) In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtain a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed."
"In the State of West Bengal v. Administrator, Howrah Munici-pality and Ors. [AIR 1972 S.C. 749], the Hon'ble Supreme Court. has held as under -
"D. Mukherji, learned counsel for the first respondent, is certainly well-founded in his contention that the - expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by Courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State."
"Smt. Chander has argued that between the earlier decisions of the Supreme Court, the latest decision should be preferred to the earlier decisions and following the same, delay of 9 months and 6 days in filing the present appeal should be -condoned. The latest decision of the Supreme Court in Collector Land Acquisition Anantnag's case does not refer to the earlier decisions. It does not appear to us that this decision has the effect of over-ruling the earlier decisions. On us, all the above decisions of the Supreme Court are equally binding and we will take a harmonious view treating all of them as binding on us.
"From the Supreme Court decision relied on by Smt. Chander, we observe that the order of the Supreme Court after laying down general propositions already reproduced above, held as under -
"Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay."
Thus it would appear that even inspite of general observations, whether or not sufficient cause explaining the delay exists or not has to be examined."
We observe that the delay in present case is over 31/2 months from the date of the receipt of the order and there is no explanation from the Revenue as to why no action was taken in processing the order when it was received in the T.C.U. We observe that even after the action for filing the appeal was taken on the basis of the order received by the adjudicating authority, the whole matter was dealt with in a very casual and leisurely manner. No explanation has been given for the period taken in the scrutiny and obtaining Dy. Chief Chemist's opinion which took about seven weeks and also we do not understand as to why the Collectorate should have taken over month's time for preparing the appeal after obtaining approval of the Collector for filing the same. There is no plea from the Collector that anybody had acted mala fide. All we can say is that the machinery in the Custom House has been allowed to function at its own leisurely pace and no attempt seems to have been made by authorities concerned to see that the appeal is filed in time. We, therefore, find that no case of sufficient cause for delay in filing the appeal has been made out. We therefore reject the application for condonation of delay. Inasmuch as we have not condoned the delay the appeals are also rejected as barred by limitation.