Customs, Excise and Gold Tribunal - Delhi
Transocean Shipping Agency (P) Ltd. vs Collector Of Customs on 22 February, 1990
Equivalent citations: 1990ECR401(TRI.-DELHI), 1990(47)ELT601(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. This is an application for condonation of delay in filing the appeal. We have heard Shri V. Laxmikumaran, learned Advocate for the appellants and Shri C.V. Durghiya, learned Departmental Representative for the respondent.
2. The impugned order bearing No. S/49-1217/81-R dated 14-7-1982 passed by the Appellate Collector of Customs, Bombay was received by the appellants on 26-7-1982. The appeal filed by the appellants was received in the Registry of this Tribunal on 2-3-1983. Last date for filing the appeal before the Tribunal was 25-1-1983 i.e. within 6 months from the date of communication of the order. Hence there is a delay of 35 days in filing this appeal. It is explained that this appeal was sent by the appellants through their Authorised Representative under the signature of Shri S. Vishwanathan of M/s. Sthanamoorthy & Company, Chartered Accountants, Bombay alongwith Bank draft for Rs. 200/- dated 25-1-1983, despatched vide their covering letter No. 27/1195/82-83 dated 25-1-1983 addressed to the Registrar, Customs, Excise and Gold (Control) Appellate Tribunal, 37, Nehru Place, New Delhi, under registered A.D. Cover where the office of the Tribunal was located previously. Shri Laxmikumaran submitted that at the time of despatching the appeal the appellants were not aware of the shifting of office of this Tribunal which had taken place in December, 1982 and hence it was posted to the old address well in tune. The delay, if any, might be due to time taken by the postal authorities in delivering the same to the present address. He stated that inspite of all possible efforts the postal receipt and acknowledgement card could not be traced either in the office of the Chartered Accountants or in the office of the appellants although it was posted on 25-1-1983. In this connection he has drawn our attention to the duly sworn affidavits dated 26-5-1989 of Shri S. Vishwanathan, Chartered Accountant, Partner of M/s. Sthanamoorthy & Co., Bombay and the Whig Cdr. N.L. Pramanik (Retd.), Chief Executive of the appellant Company wherein both of them have authentatively stated that this appeal was posted on 25-1-1983. He further submitted that demand draft bearing No. 013359 dated 25-1-1983 for Rs. 200/- towards the fee for filing the appeal got prepared from Bank which itself shows that the appeal was filed on 25-1-1983. In view of the demand draft, date of covering letter and based on affidavits, he requested to admit the appeal by condoning the delay. In support of his contention he relied on the decision of this Tribunal in the case of Viresh Kumar and Brothers 1987 (27) ELT-699 wherein the delay in postal transmission was considered and condoned.
3. On the other hand Shri Durghiya, learned D.R. for the Department vehemently opposed for condonation of delay on the ground that there is no material evidence to show that appeal was posted on 25-1-1983. Mere withdrawal and prepared demand draft from Bank itself does not amount to despatching the appeal on the very day. He submitted that appeal should be filed accompanied with the condonation application in case of delay and since this application has been filed after lapse of 6 years, this application should be dismissed in limini. He contended that this inordinate and long delay cannot be condoned as there is no sufficient cause. He relied on the decision reported in 1987 (30) ELT-1017.
4. In reply Shri Laxmikumaran submitted that application for condonation of delay was not filed alongwith the appeal as the appellant was under the bonafide impression that appeal was filed in time and application for seeking condonation can be filed at any time after filing the appeal as decided by the Patna High Court in the case of State of Bihar and Ors. v. Roy Chandi Nath Sahay and Ors. AIR-1983-Patna-189.
5. We have considered the rival submissions and perused the records. The point to be considered in this appeal is whether there is sufficient material to hold that there is no delay in filing the appeal or to condone the delay, if any, in filing the appeal.
6. Right of appeal is neither a fundamental right nor a natural right but only a statutory right. Since an appeal is a right conferred by Statute only and is not a natural right, the said right could be exercised within the parameters therefor as provided in the Statute. One such limiting provision is the period of limitation provided for in the Customs Act, 1962. Under Section 129-A(3) of the Customs Act, the appeal should be filed before the Tribunal within three months from the date of communication of the order passed by the Collector of Customs and in the present case it was six months under the Removal of difficulties Order, 1982 as the impugned order was passed prior to the formation of this Tribunal. Clause (5) of Section 129-A provides that Tribunal may admit an appeal after the expiry of the period if it is satisfied that there was sufficient cause for not presenting it within the said period. In the present case, the appeal papers were received in the Registry of this Tribunal on 2-3-1983 i.e., beyond the period of prescribed time. Hon'ble Supreme Court has taken the view in the case of T.N. Ray (1983-ELT-1296) that the date of preferring the appeal would be the date of actual receipt of the appeal by the Appellate Authority and not the date of posting the envelop. This ratio was followed by this Tribunal in the case of Jhaboolal Kesara Rolling Mills, Mirzapur v. Collector of Central Excise, New Delhi 1986 (24) ELT-128. Furthermore that sub-rule (2) of Rule 6 of the CEGAT (Procedure) Rules, 1982 specifically says that a Memorandum of Appeal sent by post shall be deemed to have been presented to the Registrar on the date on which it is received in his office.
7. In the case of Viresh Kumar & Brothers [1987 (27) ELT-699] cited by the learned counsel Shri Laxmikumaran there was a piece of material evidence i.e., postal receipt to show that the appeal was put in a course of transmission by registered post on the last date of limitation and on consideration of postal delay, the delay of 5 days was condoned by the Tribunal that too under Section 35-B(5) of the Central Excises and Salt Act as the Tribunal was satisfied that the appellant was prevented from sufficient cause not to present it in time. In the present case, that vital evidence i.e., postal receipt is missing. Any amount of explanation, statement and submissions will not become substitute for positive proof of evidence. Circumstantial oral evidence adduced by the appellants may give room to draw an inference but that itself is not sufficient to hold that appeal was posted on the very day. We are not concerned with the assumptions and presumptions but governed by the provisions of the Fiscal Statute. Presentation of appeal, limitation and mode of filing the appeal have become the part of the Statute as clearly specified under Section 129 of Customs Act, 1962 and Rule 6 of the CEGAT (Procedure) Rules, 1982. Limitation as such is neither a procedural law nor a technical but it is a substantial law of the Statute. There may be difficulty in adducing the vital piece of evidence as argued by the appellant's counsel. But we are not concerned with that aspect as there is no scope for equity under Taxing Statute. Neither there is an intendment nor equity in tax law. Statement, however, trustworthy it cannot be equated with the documentary evidence. Oral evidence is just like ton of mud as against one ounce of gold (documentary evidence). In the absence of material piece of evidence, i.e., postal receipt or acknowledgement or date of posting on the cover sent by the appellants, we are unable to accept the plea of the appellant that appeal was posted on 25-1-1983.
8. When once we are not convinced about the date of filing the appeal, the question of considering sufficient cause and to condone the postal delay if any in filing the appeal will not arise.
9. In the result, this condonation application is rejected and in consequence the appeal is dismissed as time-barred.
S.V. Maruthi, Member (J)
10. I have perused the order proposed by my learned brother Shri G.A. Brahma Deva and I am unable, with regret, to subscribe to the view expressed by him.
11. It is not necessary to refer to the facts in detail as they were already referred to by him in this order. The Order-in-Appeal was received by the appellants on 26th July, 1982 and the appeal ought to have been filed on 25th January, 1983. However, the records, disclose that it was received on 2nd March 1983. The only piece of evidence to show the bonafides of the appellant is letter Ref. No. 27/1195/82-83, dated 25th January, 1983. This letter is addressed to the Registrar, Customs, Excise and Gold (Control) Appellate Tribunal, 37, Nehru Place, New Delhi. In the letter while referring to the enclosures, it is categorically mentioned that :-
"The appeal to Tribunal is to be filed within 3 months as per the amendments to Customs Act, 1962, with effect from 11th October, 1982. However, in the present case, the order of the Appellate Collector was passed on 14th July, 1982 i.e. before coming into the force of the above amendments. Accordingly, the present appeal is being filed within six months from the date of receipt of the order by the importer. Therefore, the appeal is in time and in order."
12. In the same letter there is an authorisation by the Chief Executive on 25th January 1983 in favour of Chartered Accountant and declaration by the Chartered Accountant on 25th January, 1983. On the back side of the authorisation 2 Court fee stamps of Rs.2/-, 2 Court fee stamps of Rs. 50/- were affixed, on these Court fees stamps, we find the date as 25th January, 1983. This Tribunal while returning the demand draft by their letter dated 19-3-1983 referred to the demand draft as dated 25th January 1983.
13. Therefore, the letter dated 25th January, 1983 indicates that the grounds of appeal were signed on 25th January, 1983, stamps for authorisation and demand draft was purchased on 25th January, 1983, the authorisation letter was signed both by the Chief Executive and the Chartered Accountant on 25th January, 1983. The most important aspect is that it is categorically mentioned that since the Order-in-Appeal was passed before Customs Amendment Act 1962, with effect from the 11th October 1982 they are filing the appeal within six months from the date of receipt of the Order-in-Appeal.
14. The above shows that the appellants are aware of the limitation and that in view of the amendments, they are entitled to a larger period of limitation. This prime facie in my view establishes the bonafides of the appellants. It is true there is a lacuna in the sense there is no evidence to prove that the appeal was actually posted on 25th January, 1983. I may also point out that on the letter dated 25th January, 1983 it is mentioned 'Registered A.D'. I do not see any reason why after preparing the grounds of appeal, stamped authorisation, demand draft they should not despatch the same. According to Section 16 of the evidence Act when there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. I am aware the provisions of evidence act are not applicable to the proceedings before this Tribunal, however, to meet the ends of justice in my view we can extend the principle underlying the said provision. As according to the Chartered Accountant, all the formalities were complied with and the papers were sent to the Registrar. When once the papers were entrusted to the Chartered Accountant who is an authorised agent, it is presumed that they were sent, as it is his duty in the ordinary course of business to send them. It is also evident from this letter that it is sent to Nehru Place where the CEGAT was situated immediately after its constitution. The receipt of the letter is by the office of CEGAT in R.K. Puram.
15. The letter dated 25th January, 1983 coupled with affidavit of Vishwanathan the Chartered Acountant and other factors mentioned above, establishes that the appellants are deligent in taking steps for filing the appeal. In my view the appellants who are deligent in pursuing the matter should not be penalised for the circumstances which are beyond their control namely; changing the office of CEGAT from Nehru Place to R.K. Puram. It is only in cases when the appellants show supine indifference to the filing of the appeal they should be penalised, I, therefore, am of the view that the delay for which the appellants are responsible should be condoned. Accordingly, it is condoned.
I.J. Rao, Member (T)
16. I had the benefit of going through the orders of the two learned Judicial Members. I feel that for the reasons recorded by my sister, Ms. Maruthi, the delay in filing the appeal should be condoned, in the interests of justice.
I order accordingly.
In accordance with the majority decision the delay is condoned.