Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Instrumentation Ltd. on 12 October, 1989
Equivalent citations: 1990ECR281(TRI.-DELHI), 1990(45)ELT570(TRI-DEL)
ORDER Harish Chander, Member (J)
1. The above captioned 36 appeals emerge from a consolidated order passed by the Collector of Customs (Appeals), New Delhi disposing of 36 appeals and as such the same are being disposed of by a consolidated order. The respondents have also filed cross objection which was presented in the registry on the 4th day of October, 1989, and the respondents has also filed an application for condonation of delay for the late submission of the cross objection. Shri Gopal Prasad, the learned Consultant has appeared on behalf of the respondent has pleaded that the notice of the filing of the appeal was served on the respondents on 31st May 1989 and the respondents had to file the cross objection within 45 days from the receipt of the notice of the filing of the appeals and as such the cross objection should have been filed on or before the 15th day of July 1989 and there is a delay of 16 + 31 + 30 + 4 = 81 days. Shri Gopal Prasad the learned Consultant has stated that after the passing of the order passed by the Collector (Appeals) holding that the jurisdiction in the matter vests with the Assistant Collector of Customs, Bombay. In his order he had mentioned that the respondents should approach the Assistant Collector of Customs Bombay and the respondent had bona fidely approached the Assistant Collector of Customs, Bombay and as such the respondent was prevented by sufficient cause in the late filing of the cross objection. The respondents had written to the registry vide their letter dated 8th June, 1989 and had written that personal hearing to be granted to the respondent. Shri Gopal Prasad has pleaded that the respondent was pursuing the refund application in the office of the Assistant Collector of Customs, Bombay in view of the directions given by the Collector (Appeals) in last but one para of the order which is the present subject matter of the appeal before the Tribunal. He was bonafidely pursuing the proceedings before the Assistant Collector, Bombay. In support of his argument he has referred to the following judgments :-
(1) AIR 1954 Bombay 537 In the case of Sitaram Ramcharan and Ors. v. M.N. Nagarshna and Anr. - By mistake of law the time spent in the other forum should be excluded.
(2) AIR 1966 Andhra Pradesh 259 In the case of M. Dorayya and Anr. v. Sri Baleswaraswami Varu and Shri Venugopalaswamy Varu - The Hon'ble High Court held that "Period spent in prosecuting the case before a wrong tribunal is a sufficient cause within the meaning of Section 5 of the Limitation Act and that period should be deemed to be added to the period allowed for presenting appeal."
Shri Gopal Prasad, the learned Consultant stated that the respondent applicants had duly informed the registry and there is no negligence on the part of the applicant and as such the applicant was prevented by sufficient cause in the late filing of the cross objection. He has pleaded for the condonation of delay.
2. Shri C.V. Durghayya, the learned JDR who has appeared on behalf of the appellant - respondent applicant stated that the applicant started to pursue only on 12th September, 1989. The applicant was very much aware of his right to filing of the cross objection. The judgments cited by the learned Consultant do not help him as the facts are different. He has requested for the rejection of application for condonation of delay.
3. We have heard both the sides and have gone through the facts and circumstances of the case. The Collector (Appeals) in his order had observed "having regard to these aspects it would be only appropriate for the appellants to appeal against orders of assessments at Bombay, and if they succeed, ask Asstt. Collector, Kola, to make the refund in pursuance of the order-in-appeal.
For this purpose the appellants may approach the Asstt. Collector of Customs, Customs House at Bombay to issue speaking orders regarding assessment and classification to enable the appellant to prefer appeal if they feel aggrieved."
A simple reading of the observations of the Collector (Appeals) order will show that the appellant was pursuing the proceedings before the Assistant Collector, Bombay. The Hon'ble Supreme Court in the case of Rajendra Nath Kar v. Gangadas and Ors. reported in AIR 1979 S.C.566 on page 568-69 had held as under :-
"That leaves for consideration the question whether the appellant has shown sufficient cause for not preferring his application within a period of thirty days after August 26,1967. On this aspect of the matter, it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence, the High Court on September 16,1963 had stayed all further proceedings in the suit. If the appellant were to succeed in that revision application, the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance, under which an application could be made for setting aside the order striking out the defence. The appellant was evidently advised wrongly as regards the true legal position, as a result of which he awaited the disposal of his revision application. He filed the application under Section 17-A within 30 days of the date on which the revision application was dismissed. The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which, if successful, could have given him effective relief. We are satisfied that he had sufficient cause for not filing the application under Section 17-A within the prescribed period. Accordingly, the delay caused in filing that application must be condoned under Section 5 of the Limitation Act and the application under Section 17-A must be allowed.
In view of the judgment of the Hon'ble Supreme Court and the judgments cited by the learned Consultant we hold that the respondent applicant was prevented by sufficient cause in the late submission of the cross objections the delay in the filing of the same is condoned.
4. Now coming to the merits of the matter Shri C.V. Durghayya, the learned JDR who has appeared on behalf of the appellant stated that in the present matter the respondent have filed refund claims on account of their seeking a change in the classification of the goods as assessed by the Assistant Collector, Bombay. The Collector (Appeals) had rejected the appeals filed by the respondents on the ground that the goods were initially imported at Bombay where the Customs had filed a warehousing Bill of Entry for the purpose of Section 46 of the Customs Act, 1962. Thereafter the goods as entered under Section 46 as per relevant warehousing Bill of Entry were assessed to duty by the proper officer at Bombay under Section 17 of the Customs Act, 1962 and after the respondents fulfilled the requirement of Section 59 of the Customs Act the proper officer at Bombay accorded permission for depositing of the goods in warehoused in terms of provisions of Section 60 of the Customs Act, 1962. The Collector (Appeals) had held that the jurisdiction vests with the Assistant Collector, Bombay and not Kota and had rejected the appeals on the grounds of jurisdiction. Shri C.V. Durghayya, the learned JDR further relied on a judgment of the Tribunal in the case of Sandeep Woollen Mills v. Collector of Customs, Chandigarh in Appeal No. CD/SB/3570/87-D & 3571/87-D vide order Nos. 192 & 193/89-D, dated 11th July, 1989 where the Tribunal had held that the effective clearances took place where the duty was paid and as such the jurisdiction was with the Assistant Collector Ludhiana. He has pleaded for the acceptance of the appeals.
5. Shri Gopal Prasad, the learned Consultant who has appeared on behalf of the respondent stated that he has got no objection for the remand of the matter but pleads that the Collector (Appeals) should give a decision on merits also.
6. We have heard both the sides and have gone through the facts and circumstances of the case. The Revenue's case is fully covered by the judgment of the Tribunal in the case of Sandeep Woollen Mills v. Collector of Customs, Chandigarh, Para Nos. 3, 4 & 5 from the said judgment are reproduced below :-
"The result of the Collector's order is that the appellants were asked to contact Collector of Customs (Appeals), Bombay if they are aggrieved about the imposition of the C.V. Duty. In our opinion this was not correct. Section 47 of the Customs Act, 1962 provides for an order of clearance of goods for home consumption if all the conditions are fulfilled including the payment of import duty. Section 68 provides for the clearance of warehoused goods for home consumption subject to the conditions laid down therein one of which is payment of import duty. Therefore, the effective remedy of the appellants is in Ludhiana and the appellate authorities having jurisdiction over the place. The assessment at Bombay was only for the purpose of knowing the amount of duty so that a bond twice the amount could be executed by the importers, under Section 59 of the Customs Act. Since no duty was paid at Bombay there was no clearance under Section 47 at that place. Effective clearance took place only at Ludhiana.
In this view we set aside the impugned orders and remand the matters to the Collector of Customs (Appeals) for considering the appeals on the question of merits.
Original documents if any filed by the appellants may be returned to the appellants after an application and observance of all the formalities."
7. In view of the earlier judgment of the Tribunal we set aside the impugned order and remand the matters to the Collector of Customs (Appeals), New Delhi to redecide the same and we further hold that Assistant Collector, Kota has jurisdiction to decide the matter and as such the Collector of Customs (Appeals), New Delhi has got jurisdiction. We further direct that the Collector of Customs, (Appeals) New Delhi will dispose of the appeals on merits after granting opportunity of hearing to the respondents and shall observe principles of natural justice. In the result the 36 appeals are allowed by way of remand and 36 cross objections disposed of accordingly.