Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Watts Electronics Pvt. Ltd. on 1 January, 1800
Equivalent citations: 1991ECR214(TRI.-DELHI), 1991(53)ELT142(TRI-DEL)
ORDER Harish Chander, Member (J)
1. Collector of Customs, Bombay has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Bombay. In column No. 3, the date of communication has been mentioned as 17th May, 1983, and the appeal was received on the 5th day of December, 1983. The appellant has also filed an application for condonation of delay. With the application, a datesheet chart has also been attached. Application for condonation of delay is reproduced below:
"Prayer for Condonation of delay under Section 129A(5) of the Customs Act, 1962.
Appeal No. C/2385/83 Collector of Customs, Bombay... Appellant v.
M/s. Watts Electronics Pvt. Ltd.... Respondent The Order-in-Appeal S/49-1172/82-R was passed by Collector of Customs (Appeals) on 31-3-1983 and the same was received in Collector's office on 17-5-1983. The file was processed at various levels and, therefore, there is a delay of 108 days. The time chart showing day-to-day movement of file is enclosed herewith.
The delay of 108 days has been taken place on account of administrative delay in various departments involved in the processing of appeal like Import Group and the Tribunal Coordination Unit, and the case has been processed at different levels of various departments as the issues involved are of technical and legal matter, which required thorough scrutiny as well as in-depth study.
From above it is, therefore, clear that appeal could not be filed within statutory time-limit of three months as required under Sub-section (3) of Section 129A of Customs Act, 1962. The appeal was filed on 3-12-1983 and there was a total delay of 108 days. The department does not consider the decision of Collector (Appeals) to be legal and proper. The appellate decision if allowed to stand will adversely affect the interest of revenue. It is further submitted that the delay is not attributable to negligence or carelessness on the part of Custom House.
It is, therefore, prayed that the delay in filing the appeal may please be condoned and appeal admitted.
Sd/-
COLLECTOR OF CUSTOMS"
2. Shri M.K. Sohal, learned JDR, who has appeared on behalf of the appellant, pleaded that the delay has occurred due to inter-departmental communication, and without proper processing, the authorities could not come to the conclusion whether the appeal has to be filed or not, as soon as the appellant was able to decide as to the filing of the appeal, the same was filed at the earliest possible. In support of his argument, he has referred to a judgment of the Hon'ble Supreme Court in the case of Collector of Land Acquisition v. Mst. Katiji Bibi and Ors. reported in 1988 (19) ELT 565 where the Hon'ble Supreme Court had held that the appellant is not to explain each and every day's delay, every hour's delay or every minute's delay. He has pleaded that the bona fide of the appellant should not be doubted, and the delay in the filing of the appeal should be condoned.
3. Shri Manoj Arora, learned Advocate, who has appeared on behalf of the respondent, stated that the main plea of the appellant for condonation of delay is the inter-departmental communication and it is not a sufficient cause as the matter is covered by a judgment of the Supreme Court which is on all fours applicable to the facts of the present case, in the case of Union of India v. Tola Yadogawa Ltd. reported in 1988 (38) ELT 739. He has also relied on the following judgments :
(1) 1988 (38) ELT 712 - CC v. F.G.P. Ltd.
(2) 1990 (31) ECR 1656 - CC v. Hindustan Motors (3) AIR 1972 (SC) 749 - State of West Bengal v. Admn., Howrah Municipality and Ors.
(4) AIR 1962 (SC) 361 - Ramlal and Ors. v. Rewa Coalfields (5) 1990 (47) ELT 166 - CC v. Supreme Industries Ltd.
He has pleaded for the rejection of the application for condonation of delay, and also appeal being hit by limitation.
4. We have heard both the sides and have gone through the facts and circums tances of the case. It is not disputed that the impugned order was received by the appellants on 17th May, 1983 as mentioned in Column No. 3 of the memo of appeal. The appeal was received in the Registry on the 5th day of December, 1983. In the datesheet chart attached with the application with the condonation of delay, the date of filing of appeal has been mentioned as 2nd December, 1983 whereas we have perused the original appeal memo and the appeal records which reflect that the same was received on the 5th day of December, 1983. When we pointed out this discrepancy to Shri M.K. Sohal, learned JDR, he stated that the authorization was signed on 29th November, 1983, and there is a possibility that 2nd December, 1983 may be deemed to be the date of the despatch of the appeal. Hon'ble Supreme Court in the case of Union of India v. Tata Yadogawa reported in 1988 (38) ELT 739 had held as under in Para Nos. 2 & 3 :-
"2. It appears according to the office report on limitation that the special leave petition is delayed by 51 days. The application for condonation of delay was filed on behalf of the petitioners stating therein that due to "inter-departmental correspondence and processing of the matter to enable the department to file the instant petition."
"3. Lists of dates in the application for condonation of delay gives interesting reading as follows :-
4-11-1986 The date of receipt of certified copy of the High Court, Patna's judgment.
18-11-1986 The Collector of Central Excise, Patna, forwarded the proposal to the Board for filing the SLP in Supreme Court.
24-11-1986 The date on which the Collector's proposal was received in the Board.
3-12-1986 The Board referred the proposal to M/o Law and Justice (Advice-B) to find out the feasibility of filing SLP in the Supreme Court.
26-12-1986 The Board received back the proposal along with a copy of draft SLP.
10-2-1987 The proposal was again referred to M/o Law & Justice (CAS) as some legal problems arose in filing the SLP.
27-2-1987 The proposal was received back from M/o Law & Justice (CAS), New Delhi.
6-3-1987 File sent back for Central Agency Section for filing SLP.
Thereafter the copy of the documents were got prepared and filed
the SLP in the Court."
Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields reported in AIR 1962 Supreme Court 361, in Para No. 7 had 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 obtained 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. 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. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 3 Mad. 269, "Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."
The Tribunal had followed the judgment of the Union of India v. Tata Yadogawa Ltd. in the case of CC v. FGP Ltd. reported in 1988 (38) ELT 712 (Tri.). Hon'ble Supreme Court in the case of State of West Bengal v. The Administrator, Howrah Municipality reported in AIR 1972 Supreme Court 749 had held that the mere fact that the appellant is a State, special treatment should not be accorded to the appellant. Para No. 27 from the said judgment is reproduced below:
"27. Mr. 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 arc the same, unless the statute itself makes any dis' tinction. 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."
5. In view of the above discussion, we are of the view that there was negligence on the part of the appellants, and the appellant was not prevented by sufficient cause for the late filing of the appeal. We do not find it a fit case to exercise our discretion in terms of provision of Sub-section (5) of Section 129A of the Customs Act, 1962. Accordingly, we reject the appellants' application for condonation of delay. Since, we have rejected the application for condonation of delay, the appeal is also dismissed being hit by limitation without going into the merits of the same.