Customs, Excise and Gold Tribunal - Tamil Nadu
Mohd. Saleem vs Collector Of Customs on 1 April, 1992
Equivalent citations: 1992(62)ELT86(TRI-CHENNAI)
ORDER S. Kalyanam, Member (J)
1. This is an application for condonation of a delay of about 87 days in the presentation of the appeal. The impugned order of the Collector of Customs and Central Excise, Trichy dated 15-1-1990 was received by the petitioner on 20-1-1990 and the appeal should have been filed by 20th April 1990 and was filed only on 17-7-1990. The Ld. Consultant submitted that the petitioner was suffering from paralysis (Hemiparesis) from 10th April 1990 and had treatment upto 16th July 1990 and has produced in support of his plea a medical certificate issued by the Assistant Professor, Madurai Medical College dated 16-7-1990. The Id. Consultant also produced for our perusal some bills evidencing purchase of some medicines.
2. Heard Shri Namasivayam, Ld. DR.
3. The plea is for condonation of delay. The medical certificate would show that the petitioner was being treated for "right sided Hemiparesis from 10-4-1990 involving the facial muscles also". Since the petitioner was suffering from paralysis, a serious ailment, as evidenced by the medical certificate and since there is no evidence contra disproving the same, in the interest of justice we are inclined to condone the delay in the facts and circumstances of the case. Accordingly, the delay is condoned and the stay petition is directed to be listed for hearing as per law.
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(V.P. Gulati) (S. Kalyanam)
Member Member
V.P. Gulati, Member (T)
4. I have given a careful thought to the order recorded by my learned Brother and I am of the view that the applicant has not made out a case for condonation of the delay. I observe the matter had earlier come up for hearing when the Bench pointed out to the learned Consultant for the applicant that the certificate produced in support of the plea that the applicant was sick and was not in a position to file the appeal within the time, did not show that the applicant was bedridden and was in such a state of health that he could not do his day-to-day work and the Bench had directed the applicant to produce some supporting evidence in regard to the plea of sickness. No supporting evidence showing the prescription of the doctor or any other evidence to show that the applicant had been laid up from 10-4-1990 has been produced. The certificate is very guardedly worded which was issued on 16-7-1990 has been issued by the Orthopaedic specialist certifying that the applicant was under the said doctor's treatment for Right sided Hemiparesis involving the facial muscles and that he was treated by him in his clinic. This certificate clearly shows that the malady stated to be there was only involving the facial muscles and there is nothing in the certificate to show that the applicant had been advised rest and was not allowed to move around. As it is the applicant was being treated in the clinic of the doctor. In a case where there is a delay in filing the appeal it is imperative that credible evidence should be brought on record to establish the reason given for the delay in filing the appeal. As mentioned above, the medical certificate does not in any way communicate that the applicant was bedridden and he could not perform his day-to-day work and that his sickness was so serious that the applicant could not move around. Even the applicant in his affidavit has not stated that he was bedridden and during the full length of 87 days he was not able to move around or communicate with people or address a letter to his Consultant, who had represented him in the proceedings before the lower authority and who is also prosecuting the appeal on behalf of the applicant before the Tribunal. In view of the above, I hold that the medical certificate does not establish that the applicant was prevented from filing the appeal within time on account of the illness set out in the medical certificate produced. I may mention, the medical certificate produced does not inspire any confidence for acceptance in the way it is worded. In a case where the neurological problem was involved, if it was serious, the applicant was expected to take treatment from a Neurological specialist. No evidence has been produced by way of prescriptions, the purchase of medicines during the period of sickness. In view of the above I hold the applicant has not substantiated his plea that he was prevented on account of sickness from filing the appeal within time. The delay of 87 days in the filing of the appeal is not condoned. Since the delay is not condoned, I also dismiss the appeal as barred by limitation.
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(V.P. GULATI) MEMBER 26-3-1991.
POINT OF DIFFERENCE Whether in the facts and circumstances of the case the delay of 87 days should be condoned as held by Member (Judicial) or the delay should not be condoned and consequently the appeal should be dismissed as barred by limitation as held by Member (Technical).
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(S. KALYANAM) (V.P. GULATI)
MEMBER MEMBER
26-3-1991.
Harish Chander, Vice President
5. There is a difference of opinion between learned Brother Shri S. Kalyanam, Member (Judicial) and learned Brother Shri V.P. Gulati, Member (Technical). The following point of difference has been referred to me :
"Whether in the facts and circumstances of the case the delay of 87 days should be condoned as held by Member (Judicial) or the delay should not be condoned, and consequently the appeal should be dismissed as barred by limitation as held by Member (Technical)."
6. The appeal has been filed being aggrieved from the order passed by the Collector of Customs and Central Excise, Tiruchirapalli. In column 3 of Form No. C.A. 3 the date of communication has been mentioned as 20-1-1990 whereas the appeal was received in the Registry on 17th July, 1990. In terms of provisions of Sub-section (3) of Section 129A of the Customs Act, 1962 an appeal has to be filed within three months. This means the appeal should have been filed on or before 20th day of April, 1990. Thus there is a delay of 87 days.
7. Shri R. Ramaswamy, learned Consultant, has appeared on behalf of the applicant. He reiterated the facts and pleaded that the applicant was suffering from Hemiparesis. He referred to the medical certificate dated 16th July, 1990 issued by Dr. V.R. Issac, M.S. D.O. Oroth., Asst. Prof., Madurai Medical College, Madurai. He pleaded that the applicant was suffering from Hemiparesis from 10th April, 1990 involving the facial muscles also. He argued that the applicant was undergoing treatment from the doctor for Right sided Hemiparesis. He also argued that on the last date of hearing some bills evidencing the purchase of medicines were also produced in the open court which were duly looked into by both the Members and Departmental Representative had also seen the medical bills. Shri Ramaswamy, the learned Consultant, relied'on the order passed by the Judicial Member. He pleaded that the applicant was prevented by sufficient cause in the late filing of the appeal. In support of his argument he cited the following decisions:
(1)1991 (37) E.C.R. 225 - Alcatel India Ltd. v. CC, New Delhi .(2)
1987 (28) E.L.T. 185 (S.C.) - Collector, Land Acquisition, Anantnag v. Mst. Katiji .(3)
1989 (41) E.L.T. 8 (S.C.) - Marsha Tractors Ltd. v. Collector of Customs . He pleaded for the acceptance of application for condonation of delay.
8. Shri Jayaseelan, the learned Junior Departmental Representative, has appeared on behalf of the Respondent. The learned Junior Departmental Representative relied on the observations made by the learned Technical Member, Shri V.P. Gulati. The learned Junior Departmental Representative pleaded that the applicant was not hospitalised and he was attending the clinic of the doctor and the applicant was in a position to move around. He pleaded that it is not a fit case where the Tribunal should exercise the discretion in condoning the delay.
9. Shri Ramaswamy, the learned Consultant, in reply again reiterated the contentions made in the application for condonation of delay and also the order passed by the Judicial Member and pleaded for the acceptance of the application.
10. I have heard both the sides and also have gone through the facts and circumstances of the case. Both the learned Brothers, Shri S. Kalyanam, Member (Judicial) as well as Shri V.P. Gulati, Member (Technical), have referred to the medical certificate, a photo copy of which has been attached alongwith the application for condonation of the delay. Original medical certificate has also been produced before me. the learned Judicial Member has accepted the medical certificate. The genuineness of the medical certificate has not been doubted by both the learned Brothers. The medical bills were also produced in the open court and were perused by the Members. As already discussed above, the last date for filing of the appeal was 20th April, 1990. The applicant is not to explain his conduct from the date of the receipt of the order till the last date of expiry of limitation in view of the observations of the Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 SC 361 (S.C.) . The Tribunal in the case of Haryana Insulated Wires (P) Ltd. v. Collector of Central Excise, reported in 1989 (43) E.L.T. 444 (Tri.) had condoned the delay on the ground of sickness of the appellant. Para Nos. 5 and 6 from the said judgment are reproduced below:
"5. We have heard both the sides and have gone through the facts and circumstances of the case. The facts are not disputed. The order-in-original was received on 3rd November, 1988 and the appeal must have been filed on or before 3rd February, 1989, whereas the appeal was presented in the Registry on 4th April, 1989. There is a delay of 59 days. In terms of provisions of Sub-section (3) of Section 35B of the Central Excises and Salt Act, 1944, an appeal has to be filed within three months from the date of the receipt of the order. The appellant has duly supported his plea with an affidavit duly sworn before the Notary Public. The affidavit dated 7-7-1989 is reproduced below:
" Affidavit of Shri Sunil Mangla son of Dr. R.C. Mangla aged 35 years resident of B-9, Kalindi Colony, New Delhi.
I, the above named deponent do hereby solemnly affirm and state as under :-
1. That the Appeal against the said order in original dated 28-10-1988 before the Hon'ble Tribunal was required to be filed on or before 3-2-1989.
2. That the appeal was actually filed on 4-4-1989 resulting in a delay of 59 days in filing the said appeal.
3. That the said delay has occurred as the deponent suffered an acute at- tack of Jaundice in the last week of Jan. 1989 and remained confined to bed till the end of March, 1989 and could only attend to his office by 1st week of April, 1989, as per advice received from the Doctors attending upon the deponent.
4. That the said order-in-original was received on 3-11-1988 but as the deponent was getting strokes of fever of and on repeatedly and was feeling weak due to liver infection he could not take action and ultimately he suffered the stroke of jaundice resulting in confining him to bed.
5. That under the circumstances the delay occurred is out of control of the deponent which, the Tribunal may kindly condone.
Sd. Sunil Mangla DEPONENT VERIFICATION:
I, the abovenamed deponent do hereby solemnly affirm and declare that whatever has been stated in paras 1 to 5 is correct to the best of my knowledge and belief and nothing has been concealed therefrom.
Place : New Delhi, Sd. Sunil Mangla" Date: 7-7-1989 DEPONENT.
A simple perusal of the affidavit shows that the applicant was sick. He recovered in the last week of March, 1989 and filed the appeal on 4th April, 1989. It is a settled law that the appellant is not expected to explain the delay till the last date of limitation. The Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 Supreme Court 361 has held that the appellant is not expected to explain his conduct in the late filing of the appeal till the last date of limitation and after expiry of the limitation the appellant has to explain each and every day's delay. In the matter before us, the appellant was sick. He has filed an affidavit which is already reproduced above. The revenue has not filed any counter-affidavit and has also not filed any evidence which leads us to the inference that the contentions made by the applicant in the application for condonation of delay are incorrect. The application is duly supported with a medical certificate from Dr. D. Sen Gupta, Senior Physician, Dr. R.M.L. Hospital, New Delhi. Accordingly, we are of the view that the applicant was prevented by sufficient cause in the late filing of the appeal. The Hon'ble Calcutta High Court in the case of Karali Charan Sarma v. Apitrba Krishna Bajpayi and Ors., reported in AIR 1931 Calcutta 298 had held that where the appeal was presented some days after expiry of limitation, only days of delay should be explained to make out sufficient cause. Antecedent inaction or negligence are not material. The Hon'ble Rangoon High Court in the case of S.M. Ally v. Mating San Nyien, reported in AIR 1936 Rangoon 183 had held that: "A mere plea of sickness in itself, unless the effect of sickness was such that in the circumstances it would afford reasonable excuse for delay in presenting the appeal, would not justify the Court in exercising its discretion under Section 5. It is, however, a matter for the Court to consider in each case whether the effect of illness, as proved, is such as afforded sufficient cause for the failure to present the appeal within the time prescribed by the law. The onus lies on the applicant to satisfy the Court that he had sufficient cause for not preferring the appeal within time." In the matter before us, the applicant after filing the affidavit and the medical certificate has discharged his onus and the revenue has not filed any contrary evidence in this regard. Accordingly, we are of the view that there was sufficient cause in the late filing of the appeal.
6. Keeping in view the facts and circumstances of the case and the legal position discussed above, we hold that the applicant was prevented by sufficient cause in the late filing of the appeal. The delay in the filing of the appeal is condoned."
In the matter before me, as observed above, the genuineness of the medical certificate has not been doubted by the Tribunal and the medical bills were also produced in the open court. This shows that the medical certificate is also supported with other documentary evidence. In the Concise Medical Dictionary, Second Edition, of Oxford University Press, at page 278, Hemiparesis has been described as under:
"Hemiplegia (hemiparesis) n. paralysis of one side of the body. Movements of the face and arm are often more severely affected than those of the leg. It is caused by disease of the opposite (contralateral) hemisphere of the brain."
The medical certificate given by the doctor is reproduced below:
V.R. ISSAC, M.S., D.O. Ortho. Asst. Prof.,
Regd. No. 16294 Madurai Medical College,
Civil Asst. Surgeon, Madurai.
Rajaji Hospital, Madurai. 36, Sekilar Street,
Bi.Bi. Kulam, Madurai-2.
Phone: 41224
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16-7-1990.
This is to certify that Mr. E. Mohamed Saleem, 62, Namaikuravar Koil St., Madurai, was under my treatment for Right sided Hemiparesis from 10-4-1990 involving the facial muscles also and I was treating him in my clinic. Now he is fit. He was under my treatment upto 16-7-1990.
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Dr. V.R. Issac, M.S. Ortho D. Ortho.
Assistant Surgeon, Regd. No. 16294 (A.M.A.) GOVT. RAJAJI HOSPITAL MADURAI-625002."
A simple perusal of the medical certificate shows that the applicant was undergoing treatment for Right sided Hemiparesis from 10th April, 1990 involving the facial muscles also and the applicant was under treatment upto 16th July, 1990. Dr. V.R. Issac is an Assistant Surgeon vide Regd. No. 16294 (A.M.A.), Govt. Rajaji Hospital, Madurai - 625002. The genuineness of the certificate, as already mentioned above, has not been doubted. In view of the observations I am of the view that the applicant was prevented by sufficient cause in the late submission of the appeal. I agree with the conclusion of Shri S. Kalyanam, Member (Judicial), and order that the delay of 87 days in the filing of the appeal should be condoned.
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(HARISH CHANDER) VICE PRESIDENT 13-3-1992
11. This order may be sent for publication.
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(HARISH CHANDER) 13-3-1992 FINAL ORDER
12. In the light of the majority view, the application for condonation of the delay (No. 406/90) is allowed.
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(V.P. Gulati) (S. Kalyanam)
Member Member