Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Ajanta Tubes Ltd. on 22 February, 1989
Equivalent citations: 1989(23)ECR234(TRI.-DELHI), 1989(41)ELT697(TRI-DEL)
ORDER Harish Chander, Member (J)
1. The Collector of Customs, Bombay has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals), Bombay. The said appeal was presented in the Bombay Registry of the Tribunal on 31st October, 1988. In Column No. 3 of the appeal memo the date of communication of the order appealed against has been mentioned as 16th June, 1988. An application for condonation of delay and stay application duly supported with affidavits were also presented in the Delhi Registry on 9th January, 1989. In terms of the provisions of Sub-section (3) of Section 129A of the Customs Act, 1962 the appeal has to be presented within three months from the date of communication of the order. Shri K. Kumar, the learned SDR has appeared on behalf of the applicant. Earlier the matter had come up for hearing on 27th January, 1989. Shri Kumar, the learned SDR had appeared on the said date and had requested for adjournment on the ground that he wanted to substantiate the grounds for condonation of delay and the matter was adjourned to 22nd February, 1989 and on 22nd February, 1989 the applicant has not filed any additional grounds for condonation of delay. Shri K. Kumar, the learned SDR reiterated the contentions made in the application for condonation of delay. Shri Kumar, the learned SDR stated that the delay in filing of the appeal had occurred due to the shifting of the officers and the file had got mixed up with other files. He further stated that the last date for the receipt of the appeal was on 16th September, 1988 and on 5th August, the revenue authorities came in action for the filing of the appeal. The file was put up before the Collector on 9th August,.1988 and the Collector wanted to discuss the same with the Additional Collector and from the Collector's office, the file was sent on 10th August, 1988 and the file was traced on 12th October, 1988 and the appeal was filed on 31st October, 1988. Shri Kumar, the learned SDR has pleaded that the appellant was vigilant all the time and the delay in filing of the appeal may be condoned. In support of his arguments he has referred to the judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. MST. Katiji and Ors. reported in 1987 (28) ELT 185 (SC) where the Hon'ble Supreme Court had held that the appellant is not to explain each and every day's delay and he again pleaded for the condonation of the delay.
2. Shri Vikram Nankani, the learned Advocate who has appeared on behalf of the Respondents has argued that the appeal is hit by limitation and there is negligence on the part of the applicants. The Revenue has not been able to explain the delay for the period 10th August, 1988 to 12th October, 1988. The last date for filing of the appeal was 16th September, 1988 and there was sufficient time with the appellant for the filing of the appeal. On the other hand the Respondents were very much vigilant for getting the consequential effect to the impugned order. He stated that the Respondents had addressed the following letters to the Revenue authorities:
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Date of the The authority to whom Subject in brief letter the letter was written
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13-09-88 Asst. Collector of Customs, Request for grant
Refund Dept. of refund
14-09-88 Asst. Collector of Customs, Request for
Group IV transmission of the
file to Refund
Department
16-09-88 Collector of Customs (G) Request for issuing
instructions to AC
for grant of refund
26-09-88 Collector of Customs (G) Reminder to letter
dt. 16-9-88
11-10-88 Collector of Customs (G) Reminder to letters
dt. 16-9-88 and
26-9-88
11-10-88 Asst. Collector of Customs, Request for grant
Group IV of refund
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Shri Vikram Nankani, the learned Advocate further stated that the Additional Collector who was holding charge is still continuing and there is no change. Shri Vikram Nankani, the learned Advocate has relied on the following judgments:
(i) Collector of Customs, Bombay v. Ambica Tubes, Ahmedabad (Order No. 532/88-B.2 dated 20th)ecember, 1988 passed by the Tribunal). - 87 days delay - similar facts - delay not condoned.
(ii) Union of India v. Tata Yodogawa Ltd. -1988 (38) ELT 739 (SC) - 51 days delay not condoned.
(iii) Collector of Central Excise \.F.G.P. Limited -1988 (38) E.L.T. 712 (Tri.) - 29 days delay not condoned.
(iv) Shipping Corporation of India Ltd v. CC, Cal. -1984 (18) E.L.T. 599 (Tri.) - mis-placement of papers not sufficient cause for condonation of delay.
Shri Vikram Nankani, the learned Advocate has argued that the applicant has not been able to substantiate his request for condonation of delay and the application for condonation of delay may be rejected.
3. Shri K. Kumar, the learned SDR again requested for the condonation of delay and stated that the file was mis-placed and that was the reason for not replying to the Respondents' letters addressed to the Revenue authorities. Shri Kumar, the learned SDR has further argued that the Hon'ble Supreme Court's judgment in the case of Tata Yodogawa Ltd. 1988 (38) ELT 739 (SC) does not lay down any ratio as no legal principles have been laid down.
4. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. It is also not disputed that there was a delay of 45 days. The relevant extracts from the application for condonation of delay is reproduced below:
"The appellant has preferred an appeal against Order-in-Appeal No. S/49-50/88 TE dated 25-5-1988 passed by the Collector of Customs (Appeals). The aforesaid order was received by the Collector 16-6-1988 and the appeal being despatched to Hon'ble Tribunal on 31-10-1988. In the aforesaid matter there is a delay of 45 days in filing the appeal and in this matter of delay the Appellant submits as under:
Both the Deputy Collector and Assistant Collector of concerned Group pertaining to the present order-in-appeal were transferred. Besides, the con-cerned file got mixed up with some other Group files and considerable efforts were made to retrieve the file. This has led to loss of time. As soon as the file was retrieved, all efforts have been taken to process the case earnestly and to file the appeal. This has happened because of the shifting of Officers and for the administrative reasons which was beyond the control."
5. A simple perusal of the application for condonation of delay will show that the delay is attributed to administrative reasons. The main plea of the Revenue is mixing up of the files with other Group files and there was shifting of officers and administrative reasons. The learned SDR has cited the judgment of the Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. MST. Katiji and Ors. reported in 1987 (28) ELT 185 (SC). In the present circumstances the said judgment does not help the applicant and there appears to be negligence on the part of the applicant in the filing of the appeal and the applicant was taking up the filing of the appeal very casually. The learned SDR during the course of arguments, had explained the movement of the file. Even taking that there is no explanation for the delay from 10th August, 1988 to 12th October, 1988, whereas the limitation had already expired on 16th September, 1988. Till the last day of limitation, the appellant is not expected to explain his conduct. After the expiry of the limitation period the beneficiery of an order acquires substantial right and the appellant is expected to explain each and every day's delay. The facts of the present case are similar to that of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 (SC). Para No. 4 of the said judgment is reproduced below:
"4. From 26-12-1986 to 10-2-1987 and from 6-3-1987 to 24-3-1987 there is no cogent and possible explanation. It may be mentioned that the special leave petition was actually filed on 23-3-1987. There is no whisper to explain what egal , problems in filing the special leave petition arose" it appears to us that no attempt has been made to explain this delay. In that view of the matter we gave farther opportunity to the petitioners to file additional affidavit explaining the cause, if any, for this delay. It is further stated in the rejoinder affidavit to the counter-affidavit on behalf of the Respondents that "such delay is always beyond the control of especially in Government matters as the file has to be routed through several Sections of the Department". We are aware of the fact that the Government being impersonal takes longer time than the private Bodies or the individuals. Even giving that latitude, there must be some way or attempt to ex-plain the cause for such delay. As stated from the facts narrated hereinbefore there is no sufficient cause to explain the delay. Hence, the application for condonation of delay is dismissed."
6. This judgment was followed by the Tribunal in the case .of Collector of Central Excise v. F.G.P. Limited reported in 1988 (38) E.L.T. 712 (Tribunal). The Hon'ble Supreme Court in the case of The State of West Bengal v. The Administrator, Hawrah Municipality and Ors. etc. reported in AIR 1972 Supreme Court 749 (V 59 C144) had held that because of the mere fact that the appellant is Government a liberal view cannot be taken. Para 27 from the said judgment is reproducedbelow :
"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 are the same, unless the statute itself makes any distinction. But it cannot also be gain said that the same consideration that will be shown by courts to a private party when he claims the protection of S. 5 of the Limitation Act should also be available to the State."
7. The Hon'ble Supreme Court in the case of Ramlal and Ors. .Rewa Coal-fields Ltd. reported in AIR 1962 SC 361 had laid down the following principles :
"In construing S. 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 dis-turbed. 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 or right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by S. 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 considerations 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 Section 14 cannot to the same extent and in the same manner be invoked in dealing with application which fall to be decided only under Section 5 without reference to Section 14."
"The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as suficient cause and the question may then arise whether discretion should be exercised in favour of the party or not."
8. The judgment of the Hon'ble Supreme Court in the case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 (S.C.) is a Full Bench decision and as such the same has to be followed. The Tribunal had already taken a similar view in the case of Collector of Customs, Bombay v. Ambica Tubes, Ahmedabad vide Order No. 532/88 B. 2 dated 20th December, 1988. The facts of the present appeal are similar. In view of the judicial pronouncements and the earlier judgments of this Tribunal, we hold that there is no sufficient cause in condoning the delay. The application for condonation of delay is rejected.
9. We have rejected the application for condonation of delay. The appeal is dismissed being hit by limitation without going into the merits of the same. Since the application for condonation of delay and the appeal have been dismissed, the stay application is also dismissed.