Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Kirloskar Cummins Limited on 28 October, 1986
Equivalent citations: 1987(28)ELT65(TRI-DEL)
ORDER S. Duggal, Member (J)
1. The above-captioned eight appeals have been filed before the Tribunal, under Section 129A(1) of the Customs Act, 1962, by the Collector of Customs, Bombay, assailing a consolidated order-in-appeal passed by the Collector of Customs (Appeals), Bombay, on 30-3-1985. The date of receipt of this order, which is appealed against, in the present set of appeals, is given against Column No. 3 in the appeal (Form No. C.A.3) as 2-5-1985. The appeal was first presented at Bombay before the West Regional Bench on 27-5-1986 but has been received in the Registry of this Tribunal on 31-7-1986. The appeals, which have been filed by the Assistant Collector of Customs under authority and directions of the Principal Collector of Customs, Bombay, in terms of Section 129A(2) of the Act, are accompanied by an application for 'condonation of delay', under signatures of the Principal Collector of Customs himself. The application in each case, received on the same date as the appeals; namely, on 31-7-1986, does not carry any date on which it purports to have been made, or signed, nor is it accompanied by any affidavit or proper verification.
2. After notice, these applications for COD came up for hearing first on 9-9-1986, in the presence of Shri O.K. Saha, JDR for the appellant, and Shri S.D. Jamdar, Manager, M/s Kirloskar Cummins Ltd., on their behalf, as respondents. After perusal of the application for COD made by the Collector, it was observed that 4-7-1985 has been given the 'cut off date when the file had been processed and an appropriate decision taken up, but the succeding paragraph - which is paragraph 5 of the application - straightway mentioned that, thereafter, the recommendation was submitted, alongwith earlier order-in-appeal No. S/49-967 & 802/83 dated 30-11-1984, to the concerned Deputy Collector whereas paragraph 4 has stated that the file had been submitted by the dealing appraiser with a note for acceptance in line with the earlier orders. There being no explanation as to the cause for delay after the said date of 4-7-1985, Shri Saha requested for about four weeks' time to file the time-chart, and indicated that he will be placing reliance on a judgment of Kerala High Court, reported in '1986 (25) ELT 657', to plead that the condonation-application by Government should be dealt with leniently.
3. In reply, Shri Jamdar submitted that the Collector was relying on another appeal against Order No. S/49-967 & 802/83 dated 30-11-1984, to justify the prayer in the present appeal, but pointed out that application for COD in the said appeal had since been dismissed by the West Regional Bench, Bombay. He filed copies of the Bench Orders bearing No. 43 & 44/86 and 41 & 42/86. He further submitted that he proposed to place reliance on another judgment of the Tribunal, reported in 1986 (26) ELT 151 (Tribunal), in the case of C.C.E. New Delhi v. National Chemicals Industries Ltd., New Delhi, were judgments of the Supreme Court and the High Court of Kerala had been referred to.
4. After considering the submissions made on both sides, the Bench entertained the request of the Department Representative for adjournment to enable him to file the time-chart, and adjourned the matter to 23-9-1986. It may be noted that this date was fixed by the Bench on that day considering the fact that the representative of the respondents came from outside, and adjournment was being given at the request of the Departmental Representative, taking note of a 'part-heard' appeal in which the same representative had to appeal on 22-9-1986.
5. However, these files do not seem to have come up on 23-9-1986, having been adjourned by the Registry, and have been listed for today when Shri 3. Gopinath, SDR has appeared for the appellant-Collector, and same Shri S.D. Jamdar for the Respondents. We observe that, although the date, originally fixed on 9-9-1986, i.e. 23-9-1986, has passed off but the time-chart, for which Shri Saha had taken adjournment, has not been tiled by that date, nor even uptil now. Shri Gopinath explained this lapse to the fact that, in the meantime, the file had been received here, and the concerned Assistant Collector had informed him that, in the absence of case record, it was not possible for him to prepare time-chart or affidavit as required, but he has been instructed to pursue the case with the Tribunal, in the present case, in the light of the CEGAT Order, passed by the West Regional Bench, Bombay, on 4-8-1986 in the case of Thermax Pvt, Ltd. Shri Gopinath, while accordingly requesting that time may now be given for filing the time-chart, further stated that he would be placing reliance on a judgment of the Bombay High Court, as well as that of the West Regional Bench, Bombay, in case the matter was taken up for arguments.
6. Considering the fact, as already noted, that adjournment had been given, on 9-9-1986 upto 23-9-1986 but that date has got extended to 17-10-1986, by virtue of postponement of the matter by the Registry, and in view of the fact that the respondents' representative comes from a far-away place and he strongly opposed the request for adjournment on the ground of inconvenience and expenses; the request for further adjournment was declined. This is further in view of the fact that there was no specific request from the appellant Collector for time, as the learned SDR did not place any before us. We also fee! that, in case the appellant was very keen in the matter, an officer could be deputed from Bombay to suitably instruct the Departmental Representative to prepare, from records, the time-chart, and since no such effort has been made, we take it that the appellant has nothing more to show from the records than what already has been placed before us in the applications for COD. We, accordingly, proceed to hear the applications on merits.
7. Shri Gopinath, as earlier indicated, made a fervent plea for condonation of delay on the ground that it may be kept in view that the appellant was a Government Department and could not be expected to proceed with the same despatch as a private individual, who has to make up his own mind, whereas the Government machinery has to move in a different way and that, as such, such indulgence ; should be accorded to matters brought before Courts by the Government; particularly when public interest, or revenue, was involved. He placed reliance in support of his prayer on a judgment of Bombay High Court reported in 'AIR 1986 BOMBAY 246', following which; the West 'Regional Bench, vide Order No. 60/86 WRB dated 4-8-1986, has condoned delay in the matter of filing of an appeal by the Collector of Customs, Bombay. Shri Gopinath submitted, that on the same analogy, the present case also deserves consideration, and delay may be condoned so that the matters could be heard on merits.
8. Shri Jamdar opposed the plea of the learned SDR, made on behalf of the appellant, by submitting that apart from the fact that so far as this set of cases is concerned, the appellant has no case even on merits so far as the Tribunal is concerned because in a series of judgments, on the same issue, it has been held by the Tribunal that contervailing duty, under TI 34A of the CET, was not chargeable on components of I.C. diesel engines, imported by the respondents; otherwise also, no case has been made out, for condoning the delay, in the application itself nor by any subsequent material which could have been placed before the Tribunal. So far as the merits of the case is concerned, he filed a copy of the latest judgment of the Tribunal, vide Order No. 771 to 811/86-B2 dated 29-8-1986, which has reference to earlier orders of the Tribunal in para-4, which are quoted below :
i) Order No. B-59/83 (ECR Apr-83-365D)
ii) Order No. 972/1983B dt. 8-12-1983
iii) Order No. 750/1984-B (ECR 1984-2716)
iv) Order No. 67/85-B dt. 31-1-1985
v) Order No. 444-445/1984-B dt. 3-6-1985 (1985 ECR 1904 CEGAT) He added that it is recorded in one of the judgments reported in '1985 ECR 1904 CEGAT' that the view propounded by the Tribunal in the earlier cases had been sought to be challenged before the Hon'ble Supreme Court but the Department had failed, and that the said admission on the part of the Departmental Representative was recorded in para-7 of the aforesaid order of the Tribunal.
9. Adverting to the plea, that the present appeal being on behalf of the Revenue, some indulgent view should be taken, Shri Jamdar controverted the same by placing reliance on a judgment of the Tribunal, in the case of CCE, New Delhi v. National Chemicals Industries Ltd., New Delhi, reported in 1986 (26) ELT 151 (Tribunal), wherein, after a detailed consideration of all the submissions made on behalf of the Department, Including the judgment of the Kerala High Court on which the DR had earlier place a reliance, and relying on the observations of the Hon'ble Supreme Court, the Bench has held that there was no substance in the plea that Government Departments should be treated differently than the individual suitor. He further argued that even the situation, as highlighted by the Bombay High Court in the case relied upon on behalf of the petitioner, has not been brought out in the application for COD or by any subsequent affidavit and, as such, there can be no presumption that some of the officers, while dealing with the matter, might have held up, or delayed, with ulterior motives and that, on that consideration, delays in filing appeals or suits be condoned, as, according to Shri Jamdar, that would amount to putting premium on inefficiency or lack of urgency.
10. In so far as the facts of the present case were concerned, Shri Jamdar submitted that there was delay of 9 months and 25 days and, although there was admission in the appeal that the order-in-appeal was received on 2-5-1985, the appeals were filed, for the first time, before the Bombay Regional Bench on 27-5-1986 and received here - where they appropriately lie - on 31-7-1986, and that this delay remained wholly un-explained and, further, that in spite of time having been given to the Department, there was no explanation at all as to what happened to the files after 4-7-1985. He further submitted that the West Regional Bench, Bombay, in their own case to which there is reference in para-5 of the application for COD, had itself rejected the application for condonation of delay vide order No. 41 & 42/86-WRB dated 17-7-1986 and, as a result; the appeals were also rejected vide order No. 43 & 44/86-WRB, of even date (copies supplied).
11. We have given earnest consideration to the plea made, on behalf of the appellant/petitioner Collector for condonation of delay, by the learned SDR during the course of arguments, but we regret that no attempt has been made at all, while filing the appeal, or the application for condonation of delay, to make out a case for condonation. The application has been drawn up in a very casual and indifferent manner so much so that no care has been taken even to put a date thereon, and no cogent and convincing reasons have been set out while making the prayer. The very procedure, as set out in the application, of processing the order-in-appeal, is repugnant to the letter and spirit of Section 129A(2) of the Act, which clearly enjoins that it is the Collector of Customs himself, who has to take a decision for filing an appeal. In the case, the procedure seems to have been reversed, and the examination started from the stage of the appraiser who, curiously, is shown (reference para 4) to have recommended acceptance of the order-in-appeal, and then, suddenly, we find a statement that the recommendation was submitted to Deputy Collector along with another file; without indicating what the recommendation was? Thereafter, the only reason given is that the file was held up along with the other file, without details whatsoever as to the dates during which the file was so held up, or the reasons for which it was so. We already know the fate of the said appeals and the application for condonation of delay made therein, as is evidence by copies of the orders filed by the respondents (Orders No. 41 & 42/86-WRB dated 17-7-1986). On that ground alone, the application for COD deserves to be rejected because no reason, independent of the said appeal, has been given in the present case.
12. However, the matter having been argued with reference to case law, we would be failing in our duty if we dispose of the matter without adverting thereto. Respondents' representative has placed before us judgments of the Supreme Court, reported in 'AIR 1962 Supreme Court 361', where it has been held that once an order is passed in' favour of a litigant, then a legal right accrues to him to treat the matter as having remained unchallenged by the opposite party in appeal, and once the statutory time, set for filing an appeal, expires; the party in whose favour the earlier order exists, acquires a vested right, which should not be lightly disturbed, unless a very strong ground is made out to establish sufficient cause for condoning the delay. Similarly, the Kerala High Court, in the case reported in 'AIR 1971 (Kerala) 211', to which extensive reference has been made in the CEGAT judgment, in the case of CCE, New Delhi v. National Chemicals Industries Ltd., New Delhi (supra), held to the effect that the law of limitation operated equally for or against a private individual as also a Government Department, and that no special indulgence could be shown to the Government which, in similar circumstances, is not to be shown to an individual suitor. The Bench then held that the date-chart filed before them showing how the file had been handled did not lay any basis for condonation of delay.
13. The case before us is still worse inasmuch as even the time-chart has not been furnished in spite of time given for this purpose. We have also observed that the application has been drawn up in a routine manner without showing, as we cannot discern any, sense of urgency which the appellant -petitioner might have felt at any stage in processing the matter or even seeking condonation of delay while filing an application for condonation.
14. On a careful-and-cumulative consideration of the facts before us, we do not even think that the appellant-petitioner can fall back on the judgment of the Hon'ble High Court of Bombay (supra) or that of Kerala High Court reported in '1986 (25) ELT 657' inasmuch as there is not even a suggestion in the application, made under signatures of the Principal Collector of Customs himself, that there was at any stage some official dealing with the matter who could be suspected to having wilfully withheld the file.
15. We feel that unless there was a strong averment in a given case to that effect, perhaps there would be no justification for us to assume, on our own, that the delay could be due to reasons, other than lack of due care and diligence; particularly when there is no hint of any such factor in the application itself. For the same reason, we find ourselves unable to fall in line with the view expressed by the West Regional Bench in a subsequent order relied upon by the Department (Order No. 60/S6-WRB) (supra); particularly when in the case of appellants filed against an order-in-appeal, similar to the one now under challenge before us, and where there was a similar amount of delay, the same very WRB has rejected an application for COD and, as a consequence, the appeals themselves, vide orders referred to above (supra). Copies of the telex messages, sent by the Senior Department Representative, and those received from the Assistant Collector concerned, vide copies supplied by the learned SDR subsequently, do not reflect any keenness to file the time-chart or supporting affidavit before the Tribunal because we do not find any instruction to that effect in the reply-message; the only instruction being to place reliance on a subsequent order of the West Regional Bench.
16. We, therefore, are of our considered view that in this case, no cause, much less a sufficient cause, has been established or made out for not presenting the appeal within the statutory period, as provided by Section 129A(3) of the Act, and that no case for condoning this inordinate delay of 9 months and 25 days has been made out. We, therefore, reject the applications for 'condonation of delay in all the cases.
17. As a result, the appeals, having been filed after the statutory period of limitation, cannot be entertained and are liable to rejection. The appeals are rejected accordingly.