Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Parkar Corporation on 19 March, 1987
Equivalent citations: 1987(13)ECC150, 1987(11)ECR809(TRI.-DELHI), 1987(29)ELT300(TRI-DEL)
ORDER
S.D. Jha, Vice-President (J)
1. By the present application, the appellant - Collector of Customs, Bombay prays for condonation of delay in presenting the appeal to the Tribunal.
2. The limitation for filing appeal to the Tribunal is 3 months from the date of communication of the order challenged in appeal. The impugned order was communicated to the appellants on 17-7-1985 and applying 3 months limitation, the appeal should have been filed by 16-10-1985. The appeal was forwarded to the Tribunal by an arrangement of the appellants with the Indian Airlines through hand of pilot on 28-10-1985 and was received in the Tribunal on 1-11-1985. It is thus barred by limitation by 16 days.
3. In the application for condonation of delay and the affidavit sworned by one Shri Prem Shanker, Asstt. Collector of Customs, Tribunal Coordination Unit of the new Customs House, Bombay who has been authorised by appellant - Collector of Customs to present this appeal on his behalf, it is urged that Collector of Customs, Bombay approved the proposal of filing the appeal against the impugned order on 16-10-1985. The affidavit goes on to say that final appeal could be prepared on 28-10-1985 and on the same day, the appeal papers were despatched by hand of pilot to the Tribunal Registry which appears to have reached the Tribunal on 14-11-1985. Date 14-11-1985 is wrong because the Memo of appeal has reached the Tribunal on 1-11-1985. The affidavit further states that delay between 28-10-1985 to 14-11-1985 is only due to the transitional arrangements which were beyond the control of the appellants. On these grounds, delay in filing appeal is prayed to be condoned. The affidavit is accompanied by a time chart which is reproduced below :-
TIME CHART
1. Order-in-Appeal received in Refund section on 17-07-1985
2. Refund section put up the file for sending to groups concerned on 25-07-1985
3. AC (Refunds) 26-07-1985
4. AC (Gr. D) 29-07-1985
5. AO submitted written comments on 11-10-1985
6. AC (Group) 14-10-1985
7. DC (Group) 16-10-1985
8. Collector agreed for filing appeal on 16-10-1985
9. T.L. expired on 17-10-1985
10. Received in TCU on 18-10-1985
11. Holidays 19/20-10-1985
12. Drafting of appeal, prayer for condonation of delay, approval etc. 21-10-1985
13. Collector's approval 22-10-1985
14. Holidays 26/27-10-1985
15. Sets got prepared from outside as the office machine was out of order 28-10-1985
16. Appeal sent by hand of pilot on 28-10-1985
4. At the hearing of the application, Sh. A.S. Sunder Rajan, Departmental Representative representing the applicant-Collector of Customs, Bombay and Shri M. Venkataraman, Advocate for the respondents non- applicant were heard. Sh. Sunder Raj an relying on Supreme Court decision in Ramlal and Ors. v. Rewa Coalfields 1962 SC 361, a decision under Section 5 of the Limitation Act, 1908, a provision analogous to Sub-section (5) of Section 129 of the Customs Act, 1962 which arms the Appellate Tribunal to admit an appeal or a Memorandum of cross objection after the expiry of relevant period, if it is satisfied that there was sufficient cause for not presenting it within the prescribed period, holds that question of diligence during the relevant period is not relevant in considering sufficient cause for condonation of delay under Section 5 of the Limitation Act, 1908. He submitted that the applicant had only to explain the delay after expiry of period of limitation. He drew attention to the time chart accompanying the affidavit, already reproduced above and submitted that each day's delay in presenting the appeal to the Tribunal had been properly explained. He argued that in Government decisions are taken at various evels, the decisions are institutional and therefore, considerable latitude in dealing with application for condonation of delay made on Government behalf, be made. For this argument, Shri Sunder Rajan relied on a Karnataka High Court decision in Union of India and Anr. v. Suresh N. Shetty 1986(7) ECC 171. He submitted that on the facts of the case, the case for condonation of delay was made out.
5. Stoutly controverting Shri Sunder Rajan's contentions, Shri M. Venkataraman, Advocate for the non-applicant submitted that the applicant had failed to make out a case justifying condonation of delay. He also argued that the applicant had not been vigilant during the period of limitation and no action for directing of filing appeal was taken till the last date. The applicant woke up only in the end when limitation had expired. He also submitted that the applicant had failed to make out a case justifying condonation of delay between 17-10-1985 to 1-11-1985 i.e. the date after expiry of limitation till the Memo of appeal was received in the Tribunal. Though in a written reply to the application, reliance was placed by respondents on a number of decisions, during arguments, Shri M. Venkataraman relied on the following two decisions :-
1. Government of Andhra Pradesh & Another v. Bactchala Balaiah AIR 1985 AP 52
2. State of Bihar v. Dhajadhari Rai AIR 1985 Patna 187 (These two decisions dealt with the question of sufficient cause for condonation of delay where appeal or application were filed by State Governments of Andhra Pradesh and Bihar). In the Andhra Pradesh case, delay due to delayed instructions from Govt. and other Departmental correspondence or consultation was held not constituting sufficient cause for condonation of delay in filing application under order 9 Rule 13 CPC for setting aside the ex parte decree. The delay was of 9 days. The High Court did not condone the delay. In the Patna case, delay of 14 days said to have been caused due to office procedure, was not considered sufficient cause and application was rejected.
6. In view of Supreme Court decision in Rewa Coalfields case, it would not be permissible for us to examine what the appellants did with the appeal before the expiry of the limitation. What has to be seen is whether the appellant-applicant has made out sufficient cause for condonation of delay under sub-section (5) of Section 129A of the Customs Act, 1962 and has satisfied the Tribunal of the same. Going through the time-chart reproduced above, according to the applicant, time limit expired on 17-10-1985. Thereafter, though an attempt had been made to explain each day's delay, it is seen that the file moved on in a lethargic and mechanical way not showing any sense of urgency. There is reference limitation. If the courts were to accept the mere procedure of working in Govt. offices as sufficient cause for the delay in filing of the appeal, then the delay would have to be condoned in almost every case and the period of limitation prescribed for filing of the appeal would for the State Govt. become a misnomer".
8. Karnataka High Court decision on which Sh. Sunder Rajan has placed his strong reliance no doubt says that it would be unjust to put a private citizen and the Government on the same footing in all respects. The decision does not notice the Supreme Court decision in State of West Bengal v. Howrah Municipality AIR 1972 SC 749 (para 27) where Supreme Court held that expression 'sufficient cause cannot be construed too liberally because the party in default is the Government. The Supreme Court held it is no doubt true that whether it is a Government or a private party, the provisions of law applicable are same unless the statute itself makes any distinction". We, however, need not enter into the legal effect of the High Court not having noticed this decision on the point. It is sufficient to say that in the present appeal, it is not shown that any collective decision as in the Karnataka High Court decision was involved. All that is seen is that decision to file appeal had to be taken by Collector of Customs which he did on a date a day before expiry of 3 months limitation.
9. As against the Karnataka High Court decision, in (supra) and AIR 1985 Patna 187, delay due to inter-departmental correspondence or consultation or office procedure was held as not constituting sufficient cause for condonation of delay. Following these two decisions, delay in filing appeal cannot be condoned.
10. We, therefore, decline to exercise our discretion in favour of the appellant by condoning the delay. The application for condonation of delay is rejected. As a consequence, the appeal in respect of which this application is made, is rejected as barred by limitation.