Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Union Carbide (I) Ltd. on 1 January, 1989
Equivalent citations: 1989(40)ELT459(TRI-DEL)
ORDER Harish Chander, Member (T)
1. Collector of Customs, Calcutta, had filed a consolidated appeal being aggrieved from the following orders passed by the Appellate Collector of Customs, Calcutta:
Order No. Date of Order Date of communication Cal-Cus-498/81 to 19.3.1981 2.9.1981 Cal-Cus 501 Cal-Cus-1193/81 4.12.1981 6.3.1982 Cal-Cus-504/81 19.3.1981 13.8.1982
The said appeal was addressed to the Registry and sent per registered A.D. post vide covering letter dated 22nd May 1985 and was received in the Registry on 27th May, 1985. In the consolidated appeal in ground of appeal No. 3 internal page 5 of the appeal memo a prayer was made for the condonation of delay which is reproduced below:
"3. Reasons for delayed appeal to CEGAT The appeals to CEGAT against the subject orders-in-appeal is time barred. However, a request is made to condone the delay which occurred because the deptt. initially awaited the decision on the Revision Application made against the order-in-appeal No. 224/81, dated 2.2.81 and latter lost track of the cases because of retirement of concerned Appraiser."
The appeal was duly accompanied by an authorisation in favour of Shri S.P. Ghose, Asstt. Collector of Customs, Calcutta to file an appeal under Section 129-A(2) of the Customs Act, 1962. Thereafter, five supplementary appeals with covering letter dated 10th January, 1986 were filed and sent per registered A.D. post and received in the Registry on 20th January, 1986. Thereafter, the appellant filed a detailed application for condonation of delay which was received in the Registry on 11th February, 1986. All the applications for condonation of delay are similar. The contents of one of the applications are reproduced below:
"1. That your appellant filed an appeal under Section 129A(2) of C.A.'62 seeking to get order against the order passed by the Collector (Appeal) Calcutta Under Section 128A of C.A.'62 as the appellant was of the opinion that the said order of the Collector (Appeal) was not legal or proper.
2. That the order passed by Collector (Appeal) Calcutta was not endorsed to appellant.
3. That the office of the Collector (Appeal) Calcutta communicated the order passed by Collector (Appeal) Calcutta to Assistant Collector, Appraising Refund Section, but not to the appellant.
4. The concerned Asstt. Collector, Appraising Refund Sec. did not communicate the order in appeal to the appellant.
5. Asstt. Collector, Appraising Refund Section was awaiting the decision of a pending appeal before C.E.G.A.T., Special Bench-C, New Delhi on the identical issue filed by the Appellant in which the Respondent was the same namely M/s. Union Carbide of India Ltd. and Hon'ble Tribunal decided the aforesaid appeal in favour of the appellant vide its order C 929 & 930/84, dated 30.11.84.
6. Six orders in appeal, passed by Collector (Appeal) Calcutta were the first time brought to the notice of the appellant along with a copy of Hon'ble C.E.C.A.T.'s order No. C 929 & 930/84, dated 30.11.84 as aforesaid, on 9.4.85.
7. From the foregoing paragraph it will be abundantly clear that the appellant had no knowledge of orders in appeal prior to 9.4.85 and as such could not file appeal before the Hon'ble C.E.G.A.T. within the stipulated time.
8. It is submitted that action is being contemplated against the erring officer for not bringing the matter to the notice of the appellant well in time."
2. Notice of the appeals filed by the department was duly served on the respondent and the respondent in response to the appeals filed by the department opposed the condonation of delay and had filed a comprehensive paper book which contained an affidavit of Shri S.N.S. Mahapatra, Manager incharge of Indirect Taxation of the Union Carbide India Ltd. The affidavit was duly sworn before the Notary Public, Calcutta and subsequently, Shri S. Mukhopadhyay, Collector of Customs, Calcutta also filed an affidavit duly sworn before a Notary Public on 16th April, 1986 received by the Registry on 25th April, 1986. The affidavit is reproduced below :
"1. I am working as Collector of Customs, Calcutta and I am the appellant in the appeal before Hon'ble Customs, Excise and Gold (Control) Appellate Tribunal.
2. I have gone through the records of the case and I am acquainted with the facts and circumstances of the case.
3. I state and submit that the Order-in-Appeal No. Cal-Cus-499/81, dated 19.3.81 was communicated by the office of the Appellate Collector of Customs, Calcutta to the Appraising Refund Section in Custom House, Calcutta on 1.9.81 but not to the Collector of Customs, Calcutta directly.
4. I state and submit that on 2.9.81 the Order-in-Appeal was put up in file to Shri R.K. Roy, Appraiser in Appraising Refund Section. He gave instruction in file on 5.9.81 for requisitioning the original copy of Bill of Entry.
5. I state and submit that on 14.9.81 the file was received by Shri B.C. Kayet, Upper Division Clerk in Appraising Refund Section. But neither the original copy of Bill of Entry was requisitioned nor the file was again put up to the Appraiser.
6. I state and submit that Shri R.K. Roy, Appraiser gave instruction in the file for requisitioning the original copy of Bill of Entry instead of examining the correctness of the claim as admitted by the Appellate Collector of Customs, Calcutta. The approval of the Assistant Collector of Customs incharge of Appraising Refund Section was not taken for the action proposed by him, which was necessary specially in view of the fact that the claim was initially rejected by said Assistant Collector of Customs on merits.
7. I state and submit that after 5.9.81 no action was taken by Appraising Refund Section and in this way the time limit for filing the Revision Application under Section 131 of Customs Act 1962 expired on 1.3.82.
8. I state and submit that Revision Application became time barred on account of duty by said Sri B.C. Kayet, Upper Division Clerk of Appraising Refund Section and on account of improper discharge of duty by Sri R.K. Roy, Appraiser of Appraising Refund Section. Department proceedings were initiated against both the officers. A memorandum was issued to Sri R.K. Roy, Appraiser by Deputy Collector of Customs for Appraisement on 31.3.86 in which he was called upon to explain why appropriate action should not be taken against him for his lapses. A memorandum was also issued to Sri B.C. Kayet, Upper Division Clerk by Deputy Collector of Customs for Appraising on 3.4.86 in which he was called upon to explain why appropriate action should not be taken against him for his lapses.
9. I state and submit that at no time between the communication of the Order-in-Appeal to the Appraising Refund Section and on 8.4.85 the file was put up to the Collector of Customs Calcutta or the matter brought to the notice of the Collector of Customs, Calcutta.
10. I state and submit that the Order-in-Appeal along with the five others was for the first time brought to my notice on 9.4.85 by Assistant Collector of Customs, Appraising Refund Section along with a copy of Hon'ble Customs, Excise and Gold (Control) Appellate Tribunal's Order No. C-929 and 930/84, dated 30.11.84 in which an appeal involving the same issue and same respondent as in this appeal was disposed of in favour of the appellant.
11. I state and submit that a consolidated appeal against six Order-in-Appeal including the Order-in-Appeal in this case was submitted to Hon'ble Customs, Excise and Gold (Control) Appellate Tribunal on 22.5.85. On 10.1.86 separate individual appeal for this case was submitted to Hon'ble Tribunal.
12. I state and submit that the negligence of duty/improper discharge of duty on the part of officers should not deprive the Government of its revenue.
13. In the circumstances, the appellant most respectfully prays that the Learned Tribunal would be graciously pleased to condone the delay in filing appeal as there was sufficient cause for not presenting it within the stipulated period.
DEPONENT VERIFICATION' I, the deponent above named, verify on this 16th day of April, 1986 that the contents of the above affidavit are true and correct to my knowledge as derived from the official records. Nothing is false therein and nothing is concealed therefrom.
DEPONENT."
Subsequently, the Collector of Customs, Calcutta, also filed a supplementary affidavit duly sworn before a Notary Public on 18th July, 1986. The said affidavit is also reproduced below:
"1. I am at present working as Collector of Customs, Bombay, but at the relevant time I was the appellant in the appeal before the Hon'ble Customs, Excise & Gold (Control) Appellate Tribunal.
2. I have read the affidavit of Shri S.N.S. Mahapatra dated 22.3.86 filed in the said case and have accordingly examined the various records related to receiving of letter in Central Correspondence Section as well as receipt Section of the Appraising Refund Unit.
3. I state and submit that letter dated 22.11.83 does not appear to have been received in the Custom House.
4. I state and submit that the letter dated 3rd July, 1984, referred to in para 4 of Shri S.N.S. Mahapatra affidavit has been received in Appraising Refund Section on 6.7.84 and has been entered at Sl. No. 118 of Appraising Refund Section Receipt Register but the same has not been placed in the relevant file. Moreover, at this stage I do not recollect whether the said letter was handed over personally by Shri Mahapatra to me and whether I had called the Assistant Collector, Appraising Refund Section and discussed the matter in presence of Shri Mahapatra.
5. I state and submit with reference to the letter dated 28.9.84 referred to in para 5 of Shri Mahapatra's Affidavit that the subject letter was received in the Central Correspondence Department on 10.10.84 vide Sl. No. 903379 and the said letter was sent to Assistant Collector, Refund Section (Appraising) on 11.10.84. The subject letter is also not placed in the relevant file.
6. I state and submit with reference to the letter dated 25th March, 1985, referred to in para 6 of Shri S.N.S. Mahapatra's Affidavit dated 22.4.86 that the said letter came up before me during the meeting of the Public Grievance Committee which was held on 22nd July, 1985.
7. I state and submit that in view of the facts stated above, and the letters referred to dated 22.1.83, 3.7.84 and 28.9.84 not being in the subject file, could not form part of the Affidavit.
8. I state and submit that in any case even if the letters are received in the various Sections unless they are examined in the relevant file and submitted to me for my perusal and orders, I do not become aware of the issues raised therein.
9. I state and submit that in view of the above, facts stated in my Affidavit dated 16.4.86 do not require any change in that the matter was first brought to my notice only on 9.4.85.
10. I state and submit that in that consolidated appeal in these cases was filed on 22.5.85 the other parts in the Affidavit of Shri S.N.S.Mahapatra dated 22nd April, 1986 are not relevant as the matter was already before the Customs, Excise & Gold (Control) Appellate Tribunal for decision.
DEPONENT VERIFICATION I, the deponent above named, verify on this 18th day of July, 1986 that the contents of the above affidavit are ture and correct to my knowledge as derived from the official records. Nothing is false therein and nothing is concealed therefrom.
DEPONENT."
3. Shri G.V. Naik, the learned Joint Chief Departmental Representative, has appeared on behalf of the applicant. He has raised the following points :
(i) The appeals filed by the revenue should be deemed to have been filed within limitation as in terms of the provisions of erstwhile Section 131(3) of the Customs Act, 1962, the Central Government on its own motion could annul or modify any order passed under Section 128 or Section 130 of the Customs Act, 1962.
(ii) There was no provision under Section 128 of the Customs Act, 1962 to serve a copy of the order passed by the Appellate Collector of Customs to the Collector of Customs.
Alternatively he has pleaded that in case the applicant's first argument is not accepted, the applicant was prevented by sufficient cause in the late filing of the appeals and the delay in the filing of the appeals should be condoned on account of the following reasons:
(i) Amended Sub-section (5) of Section 128-A provided that on the disposal of the appeal the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Customs.
(ii) In terms of provisions of Sub-section (2) of Section 129-A of the Customs Act, 1962, the Collector of Customs, if he was of the opinion that the order passed by the Appellate Collector of Customs under Section 128 as it stood immediately before the appointed day, or the Collector (Appeals) under Section 128-A was not legal or proper, could direct the proper officer to file an appeal on his behalf to the Appellate Tribunal against such order.
(iii) Appeal had to be filed within three months from the date of the service of the order in terms of Sub-section (3) of Section 129-A.
(iv) In terms of Sub-section (5) of Section 129-A if sufficient cause is shown the Tribunal has got powers to condone the delay.
Shri Naik has argued that in the present matters before the Tribunal, it was only on 9th April, 1985 that it came to the knowledge of the Collector when the file was put up before him, he had ordered to file the appeals. In particular, he has referred to para 9 of the first affidavit and has also referred to the subsequent affidavit filed by the Collector of Customs, Shri S. Mukhopadhyay, Calcutta. Shri Naik has argued that the applicant was prevented by sufficient cause in the late filing of the appeals. In support of his argument, he has relied on the following judgments :
1. AIR 1963 Supreme Court 395 Bachhittar Singh v. State of Punjab "The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities."
2. AIR 1961 Supreme Court 1500 Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr.
3. 1983 ECR 1556 State of Uttar Pradesh v. Bahadur Singh and Ors. "Public interest must be considered before dismissing a delayed petition in which the delay is justifiable."
4. AIR 1979 Supreme Court 566 Rajendra Nath Kar v. Gangadas and Ors.
In the above case the appellant was wrongly advised to file a revision application instead of preferring an application. As soon as the revision application was disposed of, the appellant filed an application within thirty days. The Hon'ble Supreme Court had held that the delay in the filing of the application must be condoned under Section 5 of the Limitation Act and the application under Section 17-A of the West Bengal Premises Tenancy Act must be allowed. 1986(26) ELT 1057 (CEGAT) Collector of Central Excise v. Sarabhai Chemicals. Amended Finance Bill, 1984 shows that there was no express provision making reduction in the period for seeking a revision under Section 35-E(3) from two years to one year, to have retrospective effect. The amended provisions came into effect from 11.5.1984 and in the instant case, since the order which was sought to be reviewed was passed on 12.1.1981 being prior to 11.5.1984, cannot be held to be hit by time bar in the absence of an express provision in the amending enactment giving the amendment retrospective effect.
5. 1986 (Vol. 7) Excise & Customs, 1986(25) ELT 657 (Kar) Cases 171 Union of India and Anr. v. Suresh N. Shetty Sufficient cause liberal construction - substantial justice.
6. 1986 (Vol. 6) Excise & Customs Cases 175.
"Single appeal filed within limitation. Supplementary appeals filed subsequently -delay condonable."
8. 1986 (23) ELT 75 N. Nagamanickam Setty and Anr. v. Collector of Central Excise, Bangalore and Ors.
"In view of the principles laid down in AIR 1970 S.C. 1 and AIR 1957 S.C. 540, it follows that under Section 82 of the Gold (Control) Act, the Government as revisionary authority was exercising its appellate jurisdiction which was inextricably connected with the original proceeding initiated against the petitioners."
4. Shri Naik has lastly argued that it came to the knowledge of the Collector on 9th April, 1985 and prior to this the Collector had no knowledge of the same. The amount involved in the present matter is Rs. 18,36,044.63. The public interest has to be kept in view and as such, the appellant was prevented by sufficient cause in the late filing of the original appeal as well as supplementary appeals. He has pleaded for the condonation of delay.
5. Shri V. Lakshmi Kumaran, the learned advocate who has appeared on behalf of the respondent, has opposed the condonation of delay. He has referred to the affidavit of Shri S.N.S.Mahapatra filed on behalf of the respondent. He has argued that the order-in-appeals was not communicated to the Collector but to the lower officer and it came to the Collector's knowledge only in 1985. He stated that undoubtedly the Government could review the order passed under the erstwhile Section 131(3) of the Customs Act, 1962 without any limitation. Shri V. Lakshmi Kumaran, the learned advocate, has referred to the judgment of the Supreme Court in the case of Geep Flashlight Industries Ltd. v. Union of India and Ors. reported in 1983 ELT 15% (S.C.) where the Hon'ble Supreme Court held that: "Section 131(5) of the Customs Act, 1962 speaks of imitation only with regard to non levy or short levy but it does not speak of any limitation in regard to revision by the Central Government of its own notice to annul or modify any order of erroneous refund of duty." Mr. Lakshmi Kumaran argued that subsequent order of the Tribunal in favour of the revenue does not help the department in any way. He has referred to the application for condonation of delay dated 6th February, 1986 and the earlier and subsequent affidavits of Shri S.N.S. Mahapatra. Shri Lakshmi Kumaran has argued that sufficient revenue is involved is not a sufficient cause in the late filing of the appeals. He has relied on the following judgments:
1. 1987(28) ELT 65 (Tribunal) Collector of Customs, Bombay v. Kirloskar Cummins Ltd.
Tribunal held that:
"Delay not condonable owing to negligence and lack of due care. Section 129A(2) of the Customs Act clearly enjoins that it is the Collector of Customs himself who has to take a decision for filing an appeal. In the instant case, the procedure seems to have been reversed, and the examination started from the stage of the appraiser who, curiously, is shown to have recommended acceptance of the order-in-appeal. The very procedure of processing the order-in-appeal was, therefore, repugnant to the letter and spirit of Section 129A(2)."
2. 1986(26) ELT 124 Collector of Customs, Bombay v. S.B. Plastic Industries and Ors.
Delay not condonable as no sufficient cause.
3. 1986(24) ELT 365 (Tribunal) Collector of Central Excise, Madras v. Lucas TVs Ltd., Madras "As per Section 36(2) of the Central Excises and Salt Act, 1944 which was in force prior to the period 11.10.82 time limit of one year (i.e. upto 11.4.83) was available to the Government for reviewing the above mentioned order-in-appeal of the Appellate Collector of Central Excise. The present case was being processed and was to be submitted to the Government of India proposing review under Section 36(2). In the meanwhile, the amendment to the Central Excises and Salt Act, as made by Section 50 of Finance (No.2) Act, 1980 relating to appeals before Appellate Tribunal came into force with effect from 11.10.1982, by virtue of Notification No. GSR 597(E), dated 11.10.1982. The appellant contends that all the time it was the intention of the Revenue to review the order and the matter was under study. He has stated that by the amendment of law, the substantive right of review cannot be lost. The question of vested rights arises only in favour of the 'subject' which would be assessee or taxpayer in this case and can never be urged by the 'State' to be existing in its favour. Therefore, the contention of the department as to the existence of vested rights in favour of the State is absolutely untenable because of the stage the returns are filed or assessment made or refunds are allowed by the concerned officers question of vesting of any right in favour of the State, acting through the revenue authorities does not arise. Even issuance of Show Cause notice does not automatically create an accrued right, because the right at that stage in inchoate and that it becomes complete only when the adjudication order is passed. Generally any legislation while bringing about an amendment normally incorporates a saving clause. Whenever there is an intention to protect previous operation of the repealed law. Since there is no vested right in the case of the State and there is also no saving clause in the Act when the Amendment came into force, therefore, the State cannot claim any substantive right to review within a period of one year under Section 36(2) of the Central Excises and Salt Act as contended by the Department."
Even if sufficient cause is shown, condonation of delay is not a matter of right.
5. 1987(28) ELT 185(S.C.) Collector, Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors.
Shri Lakshmi Kumaran has argued that this judgment does not help the appellant. The benefit is available only when the appellant is not negligent. But in the present matter, the appellant is negligent. Undoubtedly, as per the judgment of the Hon'ble Supreme Court, a liberal view has to be taken, but the facts and circumstances of the present matter do not justify taking of a liberal approach in the instant case.
6. AIR 1962 Supreme Court 361 Ramlal and Ors. v. Rewa Coal Fields Ltd.
The Hon'ble Supreme Court had held that: "even after sufficient cause has been shown, a party is not entitled to the condonation of delay as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5....Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications for condonation of delay."
7. AIR 1975 Andhra Pradesh 109 Revenue Divisional Officer, Vijayawada v. T. Laxminarayana "Delay in the filing of an appeal - Government does not hold position of greater privilege than other litigants."
8. 1987 (13) E.C.C. 115 Union of India and Ors. v. Visveswaraya Iron & Steel Ltd.
"Where application for condonation of delay in filing special leave petition was filed without offering any explanation for the delay and even after about a year and nine months the defect was not rectified by filing a supplemental affidavit and the petitioner requested for opportunity to file supplemental affidavit: Held, that in the facts and circumstances of the case, there was no justification for condoning the delay and, therefore, the application and the special leave petition were liable to be rejected."
9. AIR 1981 S.C. 1921 State of Gujarat v. Sayed Mohd. Baquir El Edross The Hon'ble Supreme Court held that strong case on merits, not sufficient ground for condonation of delay.
10. 1987 (27) ELT 369 (Cal.) Bishnu Krishna Shrestha v. Union of India and Ors.
"In cases where the High Court finds any conflict between the views expressed by larger and smaller benches of the Supreme Court, it cannot disregard or skirt the views expressed by the larger Benches. The proper course for the High Court in such cases is to follow the opinion expressed by the larger Benches in preference to those expressed by smaller Benches of the Court."
6. Shri Lakshmi Kumaran, the learned advocate, has pleaded that since the revenue did not choose to review the order in terms of provisions of erstwhile Section 131(3), the right got automatically extinguished with effect from 11th October, 1982 and the revenue's plea that there is no limitation is not tenable.
On sufficient cause, Shri Lakshmi Kumaran has argued that the ground given by the revenue and mentioned by the Collector in the affidavits does not lead to inference that the appellant was prevented by sufficient cause in the late filing of the original as well as supplementary appeals. He has pleaded for rejection of the applications for condonation of delay.
7. Shri G.V. Naik, the learned Joint C.D.R., has again argued that there is no delay in filing of the appeals. The delay is just imaginary or may be called as a deemed delay as there had been no service of the order of the Collector. In support of his argument, he has referred to the judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors., reported in 1987(28) ELT 185. The Hon'ble Supreme Court had held that: "It is common knowledge that Supreme Court has been making a justifiably liberal approach in matters instituted in the Supreme Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. As such a liberal approach is adoptable for condonation of delay in the light of following principles:
(i) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(ii) 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.
(iii) "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.
(iv) 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.
(v) 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.
(vi) 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, delay in the institution of appeals must be condoned."
Shri Naik has argued that more than eighteen lakhs revenue is involved. If delay is not condoned, it will amount to miscarriage of justice. He has also referred to the judgment of the West Regional Bench reported in 1987 (27) ELT 81, Principal Collector of Customs, Bombay v. Thermax Private Ltd., Pune, "Copy of order of Collector (Appeals) received in Custom House not shown to Collector - Statutory right of appeal not exercised - Public institutions not treatable on par with private parties. Delay condonable." He has also referred to the following judgments:
1. AIR 1986 Bombay 246 State Bank of India v. Javed Textiles and Ors.
"Condonation of delay - Public institutions like banks should not be treated on per with private individuals and institutions."
2. 1986(24) ELT 32 (Tribunal) Hindustan Fertilizer Corporation Ltd. v. Collector of Central Excise, Calcutta.
"Even in equity, ultimate users would be entitled to refund/remission and not industrial users who are only intermediaries."
3. 1986(25) ELT 649 (Madras) Tamil Nadu Betelnut Packers v. Union of India.
The Hon'ble High Court had held that: "For claiming refund, it is essential on the part of person claiming refund to prove that he had not passed on the duty or the tax as the case may be to the consumers in which event these consumers alone will be the persons entitled to refund otherwise it would result in their unjust enrichment."
Shri Naik has argued that the respondent had passed on the duty to the consumers. If the delay in the filing of the appeal is not condoned, it will amount to undue enrichment. He has argued that Mst. Katiji's judgment is a later judgment and the later judgment of the Supreme Court has to be followed and Ramlal and Ors. v. Rewa Coalfields Ltd. is an earlier judgment. He has again referred to the affidavits of Collector of Customs, Calcutta, dated 16th April, 1986 and 18th July, 1986 and has argued that four thousand officers are working under the Collector of Customs and he has to see their working and as such, there is no lapse on the part of the Collector and it is a fit case for condonation of delay.
8. Shri Lakshmi Kumaran has again pleaded for rejection of the applications for condonation of delay.
9. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper appreciation of the facts relevant Sub-section (3) and Sub-section (5) of erstwhile Section 131 are reproduced below:
"(3) The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130.
(5) Where the Central Government is of opinion that any duty of customs has not been levied or has been short levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against if within the time-limit specified in Section 28."
Provisions of Section 129-A (2), (3) and (5) are also reproduced below:
"(2) The Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 128-A is not legal or proper, direct the proper officer to appeal on his behalf to the Appellate Tribunal against such order.
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Customs, or as the case may be, the other party preferring the appeal.
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in Sub-section (3) or Sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period."
10. Order No. Cal-Cus-498/81 to Cal-Cus-501/81 was passed on 19th March, 1981 and communicated on 2nd September, 1981. Order No. Cal-Cus-1193/81, dated 4.12.1981 was communicated on 6th March, 1982 and order No.Cal-Cus-504/81, dated 19th March, 1981 was communicated on 13th August, 1982. Under the erstwhile provisions of Section 131(3) the revenue did not review the order till the 11th October, 1982 and the order No. Cal-Cus-504/81, dated 19th March, 1981 was communicated on 13th August, 1982 to the officers working under the Collector of Customs, Calcutta. As per revenue's contention, it was only on 9th April, 1985 that it came to the knowledge of the Collector that orders in favour of the respondent were passed and appeal had to be filed. Shri S.N.S.Mahapatra in his affidavit on behalf of the respondent in para No. 4 has stated that he had met the Collector in July, 1984 and in para 5 he has again mentioned that he had met the Collector along with letter dated 28th September, 1984. On the other hand, Shri S. Mukhopadhyay, Collector of Customs, Calcutta, in para 4 of his affidavit has mentioned that he does not recollect that whether Shri Mahapatra had met him personally. We have perused the orders-in-appeal. Five orders were passed by the Appellate Collector of Customs on 19th March, 1981 and one order was passed on 4th December, 1981. Under the Act, there was no provision for sending a copy of the order to the Executive Collector. Undoubtedly, under the provisions of erstwhile Section 131(3) of the Customs Act, 1962, there was no limitation for reviewing the order passed under the Act. But the right to review the order extinguished on 11th October, 1982 when the amendment in the Act was made. While amending the Act, the legislature did not introduce any savings clause and as such the right of the revenue to review the order without limitation came to an automatic end on 11th October, 1982. The Tribunal has already taken the view in the case of Collector of Central Excise, Madras v. Lucas TVs Ltd., Madras reported in 1986(24) ELT 365 and had relied on an earlier judgment of the Tribunal in the case of Atma Steels Pvt. Ltd. v. C.C.E., Chandigarh reported in 1984(17) ELT 331. Undoubtedly, in terms of the provisions of Sub-section (2) of Section 129-A, the Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, was not legal or proper, can direct the proper officer to file an appeal to the Appellate Tribunal. The respondent had all along agitated and Mr. Mahapatra mentioned in his affidavit that he had approached the Collector for the issue of the refund. It was only after the decision of the Tribunal in favour of the revenue, the department decided to file appeals before the Tribunal. Both the sides have cited judgments on the issue of condonation of delay. Undoubtedly, substantial justice has to be done and the law of limitation has to be construed liberally so that the parties should not suffer on account of technicalities of law. But in the matters before us, after the amendment of law with effect from 11th October, 1982, the right to review an order under Sub-section (3) of erstwhile Section 131 got extinguished.
Earlier there was no provision under the Act for sending a copy of the order to the Collector of Customs under Sub-section (5) of Section 128-A. If this interpretation of law is to be accepted that there had been no service on the Collector of Customs, it will mean that since the coming into force of the Customs Act, 1962, where there had been no communication of the order passed by the Appellate Collector of Customs since 1962, any appeal can be filed even today. It will create an unjust situation. At the most the department could have taken the benefit of the Removal of Difficulties Order, 1982 whereunder second appeal was to be filed. The appeal could have been filed within six months from the date of the knowledge of the order by the Collector of Customs. The consolidated appeal was filed vide covering letter dated 22nd May, 1985 received in the Registry on 27th May, 1985 and the supplementary appeals were filed subsequently. There is inordinate delay in the filing of the appeals. The applicant's plea that it came to his knowledge only on 9th April, 1985 is not tenable. Accordingly, we are of the view that the department's view that there is no limitation for the filing of the appeal is not acceptable. The alternative argument of the applicant that the applicant may be deemed to have been prevented by sufficient cause is also not acceptable. The revenue had filed the appeals after the decision of the Tribunal on the similar issue in favour of the revenue. We are of the opinion that it is not a sufficient cause. Accordingly, we reject the applicant's request for condonation of delay for the original as well as supplementary appeals.
11. Since we are rejecting applications for condonation of delay, six stay applications and six appeals are also dismissed and we are not going into the merits of the appeals.
12. In the result, applications for condonation of delay, stay applications and appeals are rejected.
13. [Per Sh V.P. Gulati, Member (T) ]. - While agreeing with brother Sh. Harish Chander, I would like to add that the applicant-Collector in his affidavit dated 16th April, 1986 before us, reproduced by brother Sh. Harish Chander in para 2 of his order, at Serial No. 7 of the affidavit, has stated that the period for filing the Revision Application under Section 131 expired on 1.3.82. The appeal has been filed by him under Section 129-A and the condonation of delay in filing the appeal has been sought for under Section 129-A(5) of the Customs Act, 1962. On the admission of the Collector himself, the right for revision of the order under the provision of the Customs Act, as it stood at the relevant time when the order was passed by the Appellate Collector, stood extinguished on 1.3.82, much before the amended provisions of Section 129 etc. for appeal before the Appellate Tribunal came into force. There is no saving provision in these amended appellate provisions giving fresh lease to any proceedings which already stood concluded under the erstwhile provisions.
14. It is also observed from the submissions made by the Jt. Chief Departmental Representative in the proceedings before us at the time of personal hearing that the appeal in a similar matter had been filed before the Tribunal and that the outcome of the same was awaited by the Collector and in the understanding that the decision of the Tribunal in that case would equally become applicable to the facts of these appeals, no action was taken by the Collector for filing the appeal earlier in the matter before us. A plea has also been taken that without the approval of the Asstt. Collector, the appellate order was sent for processing of the refund claim by officials at junior level in pursuance of the appellate order impugned before us. We observe that even before the new appellate provisions for appeal before the Appellate Tribunal came into force and under which an appellate order is required to be endorsed to the Collector, necessary action for revision of the appellate order was taken in the Collectorates and a procedure for this purpose must have been devised for taking such action on receipt of the appellate orders in the Customs Houses. No such procedure has been placed before us nor is there any note on record to show that the officers at the lower levels malafidely withheld the papers from the senior officers to prevent the matter from being taken up for revision. No case has been made out before us that any administrative instructions for the purpose of filing the revision application had not been followed by some officials. In this * context, the learned JCDR for the Department in his written submissions dated 20th August, 1987 in para II has stated as under
"Public interest must be considered before dismissing a delayed petition in which the delay is justifiable. In the case of Stale of Uttar Pradesh v. Bahadur Singh and Ors. [1983 ECR 1556-D (SC)] the Hon'ble Supreme Court held : "Not implement the law should not be vigilant, but one aspect cannot be overlooked that a departmental authority may delay the moving of the higher court for oblique motives and the public interest may suffer if such course is thrown out merely on the ground of some delay which is also explainable."
No case in the light of the above submission has been made out before us.
15. In fact, the learned JCDR has made a contrary submission : From this, it would appear that no filing of the Revision application was a conscious decision and the Collector did not file any appeal awaiting the decision of the Tribunal in a similar matter. I find that while the Collector has stated that the period for filing the revision application expired on 1.3.82, the learned JCDR in the written submissions, has pleaded that the time available for filing the revision application was available without any time limit under the superseded provisions of Section 131(3) of the Customs Act, 1962. In the absence of any saving clause, this right of revision stood extinguished with the repeal of this section. The argument is that right to appeal became available under the new provisions of Section 129, 129-A etc. and other new appellate provisions for filing the appeal. There is no satisfactory reason given why the appeal could not be filed till May, 1985 much after the introduction of the new appellate provisions of Section 129 etc. of Customs Act. The reason given is that the Collector came to know of the impugned order only in 1985, much later and the appeals were filed within time after the order came to the notice of the Collector. We observe under the Removal of Difficulties order when the new provisions came into force, the period of six months for filing the appeal was made available, and this was in respect of such cases where the orders had been passed prior to the coming into force of new appellate provisions. Inasmuch as no requirement in law under the superseded provisions under Sections 128,130 and 131 of the Customs Act for endorsement of the appellate order to the Collector were there, the Collectors were obviously required to devise their own machinery to have the orders passed before the new provisions came into force, brought to their notice so that if they chose to file appeal under the amended provisions the same could be done within time.
16. Even if for the sake of argument, it is granted that the right for appeal was available to the Collector in the present proceedings till the amended provisions came into force, there is no satisfactory explanation as to why Collector could not file the appeal till 1985. No case has been made out before us that any officer suppressed or held the file back with the malafide intention or that inspite of circular having been issued by the Collector for the case of the type before us, for being put up to him, it was not put up to him. All that can be said is that the Collector did not take sufficient steps to get the case examined for the purpose of filing the appeal to the Tribunal. The averment that the appellate order did not come to his notice is of no avail. I therefore, hold that it has not been shown that there was sufficient cause which prevented the Collector from filing the appeals within time.