Customs, Excise and Gold Tribunal - Delhi
S.A.B. Electronics (P) Ltd. vs Collector Of Central Excise on 4 August, 1994
Equivalent citations: 1994(73)ELT823(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. In this application the applicant is seeking waiver of pre-deposit of Rs. 1,26,086.90 for the period July, 1989 to January, 1990. The goods involved are Deflection Components for Black & White T.V. and Colour TV. (E.H.T./RB.T.) transformers and line drive transformers and its correct classification is the question before us. The department has classified the goods under Heading 85.04 of Central Excise Tariff, 1985 while the applicant is claiming classification under Heading 85.29. The Assistant Collector has applied the ratio of the Collector (Appeals) order passed in the party's own case in order-in-appeal No. 63 dated. 3-1-1992 and as a result he confirmed the order-in-original. The first sheet of order-in-original lists out the instructions and specifically mentions of filing appeal against the order before Collector (Appeals). The applicant did not choose to file the appeal in time. After a lapse of 6 months from the date of the order, they have filed the appeal, on the ground that their consultant had given them the advice that a separate appeal is not required to be filed. The ld. Collector (Appeals) has held that "the excuse, however, does not justify the in-ordinate delay of 3 months in filing the appeal".
2. We have heard Sh. M.A. Rangaswamy, ld. advocate for the appellant and Sh. K.K. Dutta, ld. PR for the Revenue.
3. The Bench had directed the counsel to file the affidavit of the consultant, who is said to have given the wrong advice. The applicant, through the affidavit of Shri D.K. Varshney, Assistant Manager, Finance and Administration has explained that the said consultant Shri V.B. Singh has not agreed to give the affidavit, as he does not want to come into picture. Shri M.A. Rangaswamy has argued that as there was wrong advice given not to file the appeal, it is a sufficient ground to explain for condonation of delay and hence stay of recovery and waiver of pre-deposit should be granted. There is no plea of financial hardship or on the merits of the case. We have considered the pleas. We are not convinced on this line of argument of the ld. advocate. The applicant had been informed by the Assistant Collector, through his order-in-original to file a fresh appeal against the impugned order. There is nothing no record to suggest that the consultant prevented them from filing the appeal. Such advice cannot be construed as a wrong advice. Therefore, we do not see that the applicant has made out a strong prima facie for grant of waiver of pre-deposit and stay of recovery. Therefore, the stay application is rejected and they are directed to deposit the entire amount within a period of eight weeks. The matter to come up to report compliance thereafter.
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(S.L. Peeran) Date : 28-4-1994 Member (J) P.C. Jain, Member (T)
4. I have carefully considered the order proposed by my learned brother. But I regret with respect that I am unable to agree with the conclusion reached by him for the following reasons.
4.1 Learned advocate for the applicants has pointed out that the lower appellate authority, under the impugned order, has rejected the appeal of the applicants herein before the said authority as time barred inasmuch as the order-in-original dated 23-6-1992 was received by the appellants/applicants on 3-7-1992 and the appeal was filed on 4-1-1993. The maximum period including the period for which condonation could be granted for filing the appeal was upto 2-1-1993 but 2nd and 3rd January 1993 were holidays. The appeal was filed within the maximum period subject to condonation of delay beyond three months i.e. beyond 3-10-1992 by the lower appellate authority. The reason advanced for delay in filing the appeal before the said lower appellate authority given by the applicants was that their appeal in classification matter of the subject goods was pending in CEGAT and they were, therefore, given to understand by their then consultant that no separate appeal needed to be filed for the order-in-original confirming demand of duty. However, on being pressurised for realisation of the demand confirmed by the original authority, the applicants herein filed the appeal before the lower appellate authority under the advice of another advocate. These pleadings of the applicants herein before the lower appellate authority did not find favour with the said authority as being sufficient cause for the inordinate delay of three months in filing the appeal. Hence, their COD application was rejected and consequently the appeal was also rejected as time barred.
4.2 Learned advocate has further added that Shri V.B. Singh, consultant of the applicants who had advised the applicants not to file the appeal since the matter regarding classification was pending before CEGAT, had taken a plea before the original authority during the course of personal hearing on 17-12-1991 that the present matter for demand of duty be kept pending till the issue of the classification is decided by the Collector (Appeals). Thereafter, the issue of classification was decided in January 1992 by the Collector (Appeals) and against which the applicants have already filed an appeal before the CEGAT which is still pending decision.
4.3 In the aforesaid circumstances, learned advocate for the applicants has submitted that non-furnishing of an affidavit by the previous consultant giving a wrong advice to the applicants for not filing the appeal in time be not made the ground for throwing him out against the demand of duty made by the department. No wilful negligence can be attributed to the appellants/applicants inasmuch as they bonafidely went by the advice of a consultant who was a retired Central Excise Officer. This plea has not been taken by the applicants for the first time before the CEGAT but was duly taken before the lower appellate authority. Therefore, the fact that a wrong advice was given by the previous consultant, has come on record as a matter of fact. Insistence of an affidavit of the consultant, who is unwilling to give an affidavit for his own reasons, may not, therefore, be very material in the peculiar facts and circumstances of this case. The appellants' /applicants' plea is not without merit and therefore, his interest should not be affected on account of a wrong advice given by the consultant. Learned advocate, therefore, submits that the stay application may be allowed on this short ground itself and the matter may be remanded to the lower appellate authority for deciding the matter on merits after treating the appeal as in time.
5. I have given careful thought to the pleas made by the learned advocate. It is well settled by Supreme Court's judgment in the case of Collector of Land Acquisition v. Mst. Katiji and Ors., 1987 (28) E.L.T. 185 (SC) that a liberal approach should be adopted in condoning the delays so that ends of justice are' subserved. In this connection, extracts from para 3 of the said judgment of the Apex Court are reproduced below :-
"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that :-
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 considerations 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.
Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal."
6. I also note that an affidavit from the consultant Shri V.B. Singh if it had been produced, would have merely vouchsafed for the plea that a certain advice for not filing the appeal because of pendency of the classification matter of the same goods was pending before the CEGAT was given by him. Nothing more would have been achieved by the said affidavit even if it had been given by the consultant. This fact, however, has already come on record in the pleas made by the applicants before the lower appellate authority. It is, therefore, not a new plea now taken before the Tribunal. The applicants should not be put to a disadvantage because of a wrong advice given by the consultant. It is well settled that a wrong advice by an experienced consultant is considered to be a sufficient cause for the purpose of limitation in filing the appeal.
In this connection, Supreme Court's order in the case of Harsha Tractors Ltd. v. C.C. 1989 (41) E.L.T. 8 (SC) would be of some relevance. I am, therefore, of the view that the lower appellate authority should have condoned the delay in filing the appeal before it and then proceeded on to decide the matter on merits.
6.1 In the facts and circumstances, as narrated above, the stay application deserves to be allowed and the matter also requires to be remanded to the lower appellate authority since the said authority has not applied its mind to the merits of the case and the impugned order has rejected the appeal before it merely on the ground of time bar.
7. I order accordingly. Stay application is thus allowed and consequently the appeal is also allowed by remand. The lower appellate authority should decide the matter on merits in accordance with law after treating the appeal as having been filed in time.
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(P.C. Jain) Date : 29-4-1994 Member (T) POINT OF DIFFERENCE
Whether in the facts and circumstances of the case the stay petition is required to be rejected and the applicants are directed to deposit the entire amount within a period of eight weeks, as held by the Judicial Member.
OR Whether in the facts and circumstances of the case, the stay petition is required to be allowed unconditionally and the appeal itself is required to be remanded to the Collector of Customs & Central Excise (Appeals), Ghaziabad for deciding the matter after treating the appeal before it as having been filed in time, as held by the Technical Member.
Sd/- Sd/- P.C. Jain S.L. Peeran Member (T) Member (J) P.K. Kapoor, Member (T) 8. The following points of difference have been referred to me for opinion :
"Whether in the facts and circumstances of the case the stay petition is required to be rejected and the applicants are directed to deposit the entire amount within a period of eight weeks, as held by the Judicial Member.
OR Whether in the facts and circumstances of the case the stay petition is required to be allowed unconditionally and the appeal itself is required to be remanded to the Collector of Customs & Central Excise (Appeals), Ghaziabad for deciding the matter after treating the appeal before it as having been filed in time, as held by the Technical Member.
9. Arguing on behalf of the applicant, Shri M.A. Rangaswamy, Advocate stated that the applicant had sought waiver of pre-deposit of Rs. 1,26,086.90 for the period July, 1989 to January, 1990. He stated that the appellants were seeking classification of E.H.T./F.B.T. Transformers for TV. Set under Heading 85.29, whereas the Department had classified the goods under Heading 85.04. He submitted that the Assistant Collector had passed the order against the appellant on the ratio of the order passed by the Collector (Appeals) in the parry's own case in Order-in-Appeal No. 63 dated 3-1-1992. He added that the appeal filed by the applicant against the order passed by the Assistant Collector was rejected by the Collector (Appeals) on the ground that the delay in filing the appeal was beyond three months and the appellants' contention that they were wrongly advised by their Consultant that no separate appeal needed to be filed since their appeal in regard to the classification of identical goods was pending before the Collector (Appeals) did not justify the inordinate delay in filing the appeal. Shri Rangaswamy submitted that after considering the appellants' application for stay the Bench had directed the Counsel to file an affidavit of the Consultant who, as claimed/had given the wrong advice. He stated that the applicants were not in a position to file an affidavit of the concerned Consultant since on being contacted he had expressed his inability to affirm the affidavit confirming the wrong advice given by him to the applicant. He added that under these circumstances an affidavit of Shri D.K. Varshney, Assistant Manager, Finance & Administration in the appellants, firm who was conversant with the matter has been filed, wherein it has been stated that soon after the Order-in-Original dated 23-6-1992 confirming the demand against the applicant was received, he was advised by Shri V.B. Singh, the concerned Consultant, that no action was required to be taken since the appeal filed against the classification list by the appellants was pending before the Tribunal. He stated that in his affidavit Shri Varshney has also stated that the concerned Consultant who had shifted his residence from Noida was contacted in Ghaziabad but he had expressed his unwillingness to affirm any affidavit confirming that he had wrongly advised the appellant. Shri Rangaswamy submitted that as observed by the Learned Member, Technical the fact that wrong advice was given by the previous Consultant has, in fact, come on record since even during the proceedings before the Assistant Collector he had made a request that the proceedings relating to demand of duty may be kept in abeyance till the issue of classification list was decided by the Collector (Appeals). He submitted that under these circumstances the Learned Member Technical had correctly observed that the interest of the appellant should not be affected on account of the wrong advice given by the Consultant and the stay application was required to be allowed on this ground itself and the matter needed to be referred to the lower appellate authority for deciding on merits after treating the appeal as having been filed within the prescribed time limit.
10. On behalf of the respondent, Shri B.K. Singh, SDR stated that the only ground on which the applicant had sought condonation of delay in filing the appeal before the Collector (Appeals) was that he was prevented by sufficient cause from preferring an appeal within the prescribed period on account of the wrong advice given by their Consultant. He stated that having regard to this submission, the Tribunal had directed the applicant to file an affidavit of the concerned Consultant. He submitted that the failure on the part of the appellants to bring on record the affidavit of the Consultant affirming that he had wrongly advised them was indicative of the fact that wrong advice, as claimed by the applicant, was never given by the Consultant. He contended that under these circumstances as held by the Learned Member Judicial it could not be accepted that the appellants were prevented from filing the appeal within the prescribed time limit on account of the wrong advice given to them and, therefore, there was no case for waiver of the pre-deposit and stay of recovery. In support of his contention he cited the following case law :
Atco Industries Ltd. v. Collr. of Customs - reported in 1993 (64) E.L.T. 129.
Tamilnadu Steel Tubes Ltd. v. Collector of Customs - reported in 1989 (44) E.L.T. 756.
Shalimar Group Pvt. Ltd. v. Collector of Customs - reported in 1990 (50) E.L.T. 390.
Learned SDR further submitted that the order passed by the Collector (Appeals) was received by the appellant on 3-7-1992 and the appeal was filed on 4-1-1993. He contended that the delay in filing of the appeal being more than 3 months it was not condonable since the Collector (Appeals) was empowered to condone the delay of only 3 months.
11. In his reply Shri Rangaswamy, Learned Advocate stated that there was no force in the point made by the Learned SDR that the delay beyond three months was not condonable in this case. He contended that if the last day of the extended period of three months beyond the normal period or limitation happens to be a holiday, the appeal filed on the next day would have to be deemed as having been filed within the period of three months. He reiterated his stand that as brought out in the affidavit filed by Shri D.K. Varshney of the appellants' firm the concerned Consultant had refused to cooperate by affirming an affidavit to confirm that he had wrongly advised the appellant in regard to the filing of the appeal against the order passed by the Assistant Collector. He, therefore, contended that as held by the Learned Member Technical a liberal approach was required in the matter so that the appellants were not deprived of their right to appeal. He pleaded that the order passed by the Learned Member Technical may be confirmed and after granting unconditional stay the appeal may be allowed by way of remand to enable the Collector (Appeals) to decide the appeal as having been filed in time.
12. I have considered the submissions made on behalf of both sides. It is seen that the appeal filed by the appellants against the order passed by the Assistant Collector was rejected as time barred on the ground that there was delay of over three months in filing the appeal. The Collector (Appeals) held that the appellants' claim that the delay in filing the appeal was on account of the wrong advice given by their Consultant that no separate appeal was required to be filed in the matter since the decision in another appeal relating to their classification list was pending before the Collector (Appeals) was not a sufficient ground justifying the condonation of inordinate delay of three months in filing the appeal. As held by the Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 SC 362, that after the expiry of limitation the respondent acquires substantial rights and the appellant has to explain each and every day's delay. Since the only ground on which the delay in filing of the appeal before the Collector (Appeals) was sought to be explained by the appellant was that they were not correctly advised by their Consultant, the Tribunal had directed that in order to bring out the facts in this regard the appellant should file an affidavit of the concerned Consultant. The appellant has not filed the affidavit as directed by the Bench on the ground that the concerned Consultant has expressed his inability to cooperate with him any further. In the case of Atco Industries Ltd. v. Collector of Customs reported in 1993 (64) E.L.T. 129, the Tribunal has held that the plea of wrong advice by Advocate is not acceptable when there is no affidavit of the Advocate to the effect that he had given advice to the appellant. In view of the decision of the Tribunal quoted above, I am inclined to agree with the order passed by the Member Judicial that in the facts and circumstances of the case the stay petition is required to be rejected and the applicants are to be directed to deposit the entire amount within a period of eight weeks.
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Dated : 28-7-1994 (P.K. Kapoor)
Member (T)
ORDER
In terms of the majority order, the stay petition is rejected and the applicants are directed to deposit the entire duty amount of Rs. 1,26,086.90 as demanded in the impugned orders, within a period of eight weeks from the date of receipt of this order.
Registry to list the case for mention to report compliance thereafter.
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Gowri Shankar S.L. Peeran
Dated: 4-8-1994 Member (T) Member (J)