Customs, Excise and Gold Tribunal - Delhi
Tamilnadu Steel Tubes Ltd. vs Collector Of Customs on 23 August, 1989
Equivalent citations: 1990ECR189(TRI.-DELHI), 1989(44)ELT756(TRI-DEL)
ORDER Harish Chander, Member (J)
1. M/s. Tamilnadu Steel Tubes Ltd., had filed the above captioned 5 appeals being aggrieved from the order passed by the Collector of Customs (Appeals), Madras. The particulars of the filing of appeals are as under :-
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Sl.No. Appeal No. Date of Communication. Due date.
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1. C//2019/89 29-6-1988 29-9-1988
2. C/2020/89 29-6-1988 29-9-1988
3. C/2021/89 29-6-1988 29-9-1988
4. C/2022/89 28-6-1988 28-9-1988
5. C/2023/89 8-8-1988 8-11-1988
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Serial No. 1 to 3 in the above captioned appeals were filed on 21st July, 1989, whereas the due date was 29th September, 1988. Thus there is a delay of 295 days. In Serial No. 4 in appeal there is a delay of 2% days whereas the appeal in Sl. No. 5 there is a delay of 255 days. Since the common issue is involved in the above captioned applications for condonation of delay are disposed of by a consolidated order.
2. Shri R. Sethuraman, Company Secretary of the applicant company has appeared on behalf of the appellants. He has reiterated the contentions made in the application for condonation of delay. The fact as to the delayed submission of appeals is not disputed. Shri R. Sethuraman has pleaded that the applicant had been bonafidely waiting for the outcome of the other matters which were pending before Collector (Appeals), and bona fidely he was under the honest belief that the limitation will run from the date of the final decision in respect of other matters, and he has argued that there was mistake of law and limitation will run from the date when the mistake of law came to the knowledge of the applicant. In support of his argument he has referred to a judgement of the Supreme Court in the case of D. Cawasji & Co. v. State of Mysore reported in 1978 (2) E.L.T. J 154 (S.C.). Shri R. Sethuraman has further argued that the last order was in favour of the appellants i.e. Order No. C3 884-894/88 dated 18th July, 1988. He has also relied on a Madras High Court judgment in the case of Harakchand Uttamchand & Ors. v. Union of India in Writ Petition Nos. 9867,9868,10212,10636,10637,10640 and 10641 of 1987. (No certified copy has been filed). The Madras High Court had held that limitation will run from the date when the mistake of law came to the knowledge of the applicant. He has pleaded that the applicant was prevented by sufficient cause for the late filing of the appeals and as such the delay in the filing of the appeals may be condoned, otherwise the applicant will suffer irreparable loss.
3. Shri C.V. Durghayya, the learned JDR who has appeared on behalf of the respondent stated that there is no sufficient cause in the late filing of the appeals. He has pleaded that after expiry of the limitation the appellant is to explain each and every day's delay, in support of his argument, he has referred to the following judgments :-
1. AIR 1962 (S.C.) 361 - Ramlal v. Rewa Coal Fields.
2. 1988 (38) E.L.T. 739 (S.C.) - Union of India v. Tata Yodogawa Ltd.
3. 1988 (38) E.L.T. 712 (Tribunal) - Collector of Central Excise v. F. G.P. Ltd.
4. 1985 (21) E.L.T. 518 (Tribunal) - Angus Company Ltd. v. Collector of Cus.
5. 1987 (27) E.L.T. 102 (Tribunal) - Collector of Central Excise, Vadodara v. Banco Aluminium Gujarat Aluminium, Baroda.
6. Order No. 22/89-B2 dated 22nd February, 1989 - U.P. State Brasware v. Collector of Cus., Calcutta.
7. 1989 (41) E.L.T. 697 (Tribunal) - Collector of Customs, Bombay v. Ajanta Tubes Ltd.
Shri C.V. Durghayya, the learned JDR has pleaded that in view of the judgments cited by him the applications for condonation of delay should be rejected, and as a consequential effect the appeals may also be dismissed. Shri R. Sethuraman, the learned representative of the appellants in reply to the arguments of the learned JDR has again requested that in view of the judgment of the S.C. in the Case of D. Cawasji & Co. v. State of Mysore reported in 1978 (2) E.L.T. J154 (S.C.), the delay may be condoned.
4. We have heard both the sides and have gone through the facts and circumstances of the case. The facts as to the delayed filing of the appeals are not disputed. The applicants prayer for condonation of delay which has been incorporated in the appeal memo is reproduced below :-
"There has been some delay in filing this petition beyond the stipulated period. This is mainly due to the fact that we were given to understand that the Customs House itself has taken a stand for re-assessment of the goods and we expected a 'Suo Moto' refund in all these cases by the Customs House. To our surprise the same had not taken place and as such we are left with no other alternative but to file this petition. It may be pointed out that Collector of Appeals, Madras had admitted number of appeals for re-assessment of goods under Section 86/86 in respect of other Importers and the Customs House, Madras has resorted to provisional assessment of simillar goods. A number of our consignments have been provisionally assessed, which clearly indicate that the Customs House itself was well aware of the fact that the original assessments made by them was not in accordance with the tariff. All these made us to believe that the Customs House will on its own reopen the earlier cases of erroneous assessments and grant refund "Suo Moto". This has resulted in ourselves not filing this petition in time. We request for condonation of delay and the same was due to genuine reasons. We may reiterate that as the goods have been erroneously assessed by the Customs House, denial of refunds on grounds of Time Bar is not justifiable.
We may be heard in person before a decision is taken."
A simple perusal of the prayer will show that the appellant wants that the Customs House should re-open the earlier cases of erroneous assessments, and grant refund Suo Moto, and this resulted in not filing the appeal in time as the cases have been erroneously assessed by the Customs House, and denial of refund on the ground of time barred is not justifiable. It is a settled law that the right of filing of the appeal is vested with the party by the statute, and if the statute lays down any conditions for the filing of the appeal, those conditions have to be fulfilled. In terms of provisions of Sub-section (3) of Section 129A of the Customs Act, 1962 the appeal has to be filed within 3 months from the date of the communication of the order. In the matters before us the delay in the filing of the appeals varies from 296 to 255 days. It is a settled law that the appellant is not to explain his conduct till the last date of the limitation. The appellant is to explain each and every day's delay from the last day of the limitation till the filing of the appeal. In the matter before us the only plea of the appellants is that they were waiting for the outcome of the decision of the Collector (Appeals) in respect of other consignments. We are of the view that these pleas of the appellant are not tenable, and it cannot be deemed to be a sufficient cause in the late filing of the appeals. Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 (S.C.) 361 had laid the following principles :-
"In construing Sec. 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 and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal.
It is however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Sec. 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it.
Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under S. 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, considerations which have been expressly made material and relevant by the provisions of S. 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under S. 5 without reference to S. 14.
The effect of the explanation is that if the party who has applied for extention of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not."
Hon'ble Supreme Court's case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) E.L.T. 739 (S.C.) is a full Bench decision and as such the same has to be followed. Shri Sethuraman, the learned authorised representative of the appellant company had placed strong reliance on the Madras High Court judgment in the case of Harakchand Uttamchand and Ors. v. Union of India and D. Cawasji & Co. v. State of Mysore reported in 1978 (2) E.L.T. J 154 (S.C.). Both the judgments relate to the grant of refund where the duty has been collected without authority of law, and pertains to the grant of refunds. In the matter before us there is no dispute that the appeals were filed after the expiry of limitation. The discretion vested with the Tribunal under Section 129A(5) can be exercised only in those cases where the appellants are able to establish that they were prevented by sufficient cause in the late filing of the appeals. In view of the legal position discussed above we do not find any justification in condoning the delay and hold that the appellants were not prevented by sufficient cause in the late filing of the appeals. The appellants requested for condonation of delay of the 5 above captioned appeals is rejected.
5. Since we have rejected the appellant's prayer for condonation of delay, the above captioned 5 appeals are also dismissed being hit by limitation. We have dismissed the appeals on the point of limitation, and as such we are not going into the merits of the same.