Customs, Excise and Gold Tribunal - Delhi
Collector Of Customs vs Hindustan Motors Ltd. on 27 August, 1990
Equivalent citations: 1990ECR656(TRI.-DELHI), 1991(51)ELT400(TRI-DEL)
ORDER Harish Chander, Member (J)
1. Collector of Customs, Calcutta has filed the above captioned appeals being aggrieved on order passed by the Collector of Customs (Appeals), Calcutta by order No. 1538-1540/89, dated 28-9-1989. The said appeals were presented in the Calcutta registry on the 8th day of May, 1990. The appeals so filed in the Calcutta registry were transferred to Delhi registry. Simultaneously, the stay applications and applications for condonation of delay were also filed. In column number 3 of the appeal memo in form No. CA-3, the date of communication has been mentioned as 27-11-1989. Shri Prabhat Kumar, learned JDR who has appeared on be-half of the applicants pleaded that the applicants are prevented by sufficient cause for late filing of the appeals. Therefore, the delay for filing of the appeals may be condoned. He pleaded that there is a delay of 69 days in the filing of the above captioned appeals and the applicants had been vigilant altogether in the filing of the appeal. In support of his arguments, he has referred to time chart which is in Annexure C alongwith the ap-plication for condonation of delay. Shri Prabhat Kumar, learned JDR pleaded that before the appeals could be filed, the aspplicants had to apply his mind whether the appeals are to be filed or not and prima facie merits of the case had to be looked into. He pleaded that there was Collectors' Conference on 7th and 8th March, 1990 and the applicant decided to file the appeal after discussions on the subject in the Collectors' Conference. He pleaded that the Bombay High Court in the case of Vishal Electronics Pvt. Ltd. v. Union of India reported in 1989 (44) ELT 420 (Bom.) is in favour of the applicant and accordingly the applicant decided to file the appeals. He pleaded that a simple look at the time chart shows that on 19th February, 1990 which is well before the expiry of the limitation, the file was sent to the Assistant Collector (Tariff Cell) and after that there was movement of file from one office to the other for the filing of the appeals and there is no negligence on the part of the applicant and bona fide of the applicant should not be doubted. In support of his arguments, he has referred to the judgment of the Supreme Court in the case of Collector of Land Acquisition, Anantnag and Anr. v. MST. Katiji and Others reported in 1987 (28) ELT 185. Shri Prabhat Kumar, learned JDR pleaded that the amount involved is Rs. 7,98,431/- and delay in the filing of the appeal may be condoned.
2. Shri N.C. Sogani, learned Consultant who has appeared on behalf of the respondents pleaded that there was negligence on the part of the applicant in the filing of the appeals. He has referred to the date sheet chart filed by the applicant which is necessary for the condonation of delay and pleaded that from serial No. 11 of the time chart after the conveyance of Collector's decision on 12-3-1990, the applicants have taken long time in the filing of the appeal before the Tribunal. He referred to the case of Union of India and Others v. M/s. Tata Yodogawa Ltd. and Anr. reported in 1988 (38) ELT 739 (SC) = 1988 (19) ECR 569 (S.C.). Shri Sogani pleaded that the appeals are hit by limitation and that the applicant has not been able to establish sufficient cause and Tribunal should not exercise its decision in condoning the delay.
3. Shri Prabhat Kumar, learned JDR again pleaded for condonation of delay.
4. We have heard both sides and gone through the facts and circumstances of the case. The facts are not disputed. The impugned common order passed by the Collector of Customs was served on 27-11-1989 and the receipt of the appeals in this Tribunal is dated 8-5-1990. Thus there is a delay of 69 days. The applicant has filed an application for condonation of delay. The relevant extract from the application for condonation of delay is re-produced below :-
"Your applicant above named most respectfully swearth :-.
That the order in appeal No. 1538-1540/89, dated 28-9-1989 passed by the learned Collector of Customs (Appeals) is on the basis of an incorrect interpretation of the expression 'rate applicable' appearing against tariff Heading 8208.10 rendering huge amount of Govt. revenue at stake.
2. That the Hon'ble High Court of Bombay in its decision in the case of Vishal Electronics Pvt. Ltd. v. Union of India - 1989 (44) ELT 420 (Bom.) decided that the expression 'rate of duty applicable' referred to duty specified in the Tariff heading and not the effective rate while interpreting the scope of expression 'rate applicable' in the context of another similar notification.
3. That the department has already 15 numbers of appeals against the orders of Collector of Customs (Appeals) on the same issue.
4. That the subject case was one of the first of the 16 orders of the Collector of Customs (Appeals) and that by the time a decision was taken after the Conference of Collectors on 7th and 8th March, 1990 the time limit for filing appeal in this case had already expired.
5. That the correct legal position regarding the copy of rate applicable came to be known only after the decision of Hon'ble Bombay High Court in the matter of Vishal Electronics Pvt. Ltd. v. Union of India mentioned in para 2.
6. That the applicant prays leave to refer to the time explaining the delay in filing appeal in Annexure C.
7. That the applicant most respectfully request to consider the explanation as stated herein above and pray for condonation of delay to save the loss of substantial Govt. Revenue."
Alongwith the application, the applicant has also attached time chart vide Annexure C. The same is also re-produced below ':-
"1. Order-in-Appeal received in Review Cell and file 27-11-1989 sent to Group.
2. Examination of the case by Appraiser and Asstt. Col- 2-12-1989 to lector, Air Cargo Complex Import. 22-12-1989
3. Submission by A.C. (CCI) to Addl. Collector Airport 1-2-1990
4. Return of the file from Addl. Collector to A.C. (CCI) 6-2-1990
5. Resubmission of file by A.C. (CCI) to Addl. Collr. 8-2-1990 (Airport)
6. Reference to Addl. Collector (Apprg.) Customs 8-2-1990 House.
7. Orders of Addl. Collr. (Apprg.) to refer the issue to 14-2-1990 Conference of Collectors and sending file to A.C. (Gr.
5A)
8. Preparing brief for reference to Collectors' Con- 15-2-1990 ference by A.C. (Gr. 5A)
9. Resubmission of the file by A.C. (Gr. 5A) to Addl. 16-2-1990 Collr. (Apprg.)
10. File sent to A.C. (Tariff Cell) by Addl. Collr. 19-2-1990 (Apprg.)
11. Conveying of Collector's decision to file appeal 12-3-1990 against the Collector's (Appeals) order in pursuance to the decision of Conference of Collectors through Addl.
Collr. (Apprg.)
12. Receipt of file by Addl. Collr. (Airport) and A.C. 12-3-1990 (CCI)
13. Orders of Asstt. Collector (ACCI) to file appeal with 12-3-1990 prayer for Condonation of delay to Appraiser (Shri Basu)
14. Processing of the case by Office of CCI and forward- 6-4-1990 ing to Review Cell
15. Receipt of file in Review Cell 17-4-1990
16. Processing of the appeal in Review Cell 17-4-1990 to 23-4-1990 (7 days)
17. Finalisation of appeal papers and typing final set of 23-4-1990 to appeal 5-5-1990
18. Approval of authorisation and despatch 7-5-1990 A simple perusal of the application for condonation of delay shows that in the para 5 of the application for condonation of delay the applicants have mentioned the correct legal position regarding scope for rate applicable which came to be known after decision of the Bombay High Court in the case of M/s. Vishal Electronics Pvt. Ltd. v. U.O.I. reported in 1989 (44) ELT 420 (Bom.). Shri Prabhat Kumar, learned JDR during the course of arguments had stressed on the time chart which,mentioned the period from 27-11-1989 to 7-5-1990 and also the judgment of the Supreme Court in the case of Collr., Land Acquisition Anantnag and Anr. v. MST. Katiji and Ors. reported in 1987 (28) ELT 185 (S.C.). Hon'ble Supreme Court in this case had held that the applicant is not to explain each and every day's delay. The relevant extract of the said case is re-produced below :-
"3. The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matter instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :-
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. 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.
3. "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.
4. 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.
5. 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.
6. 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, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is ad-ministered in an even handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. [In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression ''sufficient cause". So also the same approach has to be evidenced in its ap-plication to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."
Thereafter another matter came before the Supreme Court in the case of Union of India v. Tata Yodogawa Ltd. and Anr. reported in 1988 (19) ECR 569 (SC). There the Hon'ble Supreme Court has held as under :-
"2. It appears according to the office report on Limitation that the special leave petition is delayed by 51 days. The application for condonation of delay was filed on behalf of the petitioners stating therein that due to "inter-departmental correspondence and processing of the matter to enable the department to file the instant petition.''
3. List of dates in the application for condonation of delay gives interesting reading as follows :-
4-11-1986 The date of receipt of certified copy of the High Court, Patna's
judgment.
18-11-1986 The Collector of Central Excise, Patna, forwarded the proposal to the Board for filing the S.L.P. in Supreme Court.
24-11-1986 The date on which the Collector's proposal was received in the Board.
3-12-1986 The Board referred the proposal to M/o Law and Justice (Ad-
vice-B) to find out the feasibility of filing SLP in the Supreme
Court.
26-12-1986 The Board received back the proposal alongwith a copy of draft
S.L.P.
10-2-1987 The proposal was again referred to M/o Law and Justice (CAS)
as some legal problems arose in filing the S.L.P.
27-2-1987 The proposal was received back from M/o Law and Justice
(CAS), New Delhi.
6-3-1987 File sent back for Central Agency Section for filing S.L.P.
Thereafter the copy of the documents were got prepared and
filed the S.L.P. in the Court
4. From 26-12-1986 to 10-2-1987 and from 6-3-1987 to 24-3-1987 there is no cogent and possible explanation. It may be men-tioned that the special leave petition was actually filed on 23-3-1987. There is no whisper to explain what "legal problems in filing the special leave petition arose". It appears to us that no attempt has been made to explain this delay. In that view of the matter we gave further opportunity to the petitioners to file additional affidavit explaining the cause, if any, for this delay. It is further stated in the rejoinder affidavit to the counter affidavit on behalf of the Respondents that "such delay is always beyond the control of especially in Government matters as the file has to be routed through several Sections of the Department". We are aware of the fact that the Government being impersonal takes longer time than the private Bodies or the individuals. Even giving that latitude, there must be some way or attempt to explain the cause for such delay. As stated from the facts narrated hereinbefore there is no sufficient cause to explain the delay. Hence, the application for condonation of delay is dismissed."
5. Hon'ble Supreme Court in the case of Mr. Ram Lal v. M/s. Rewa Coalfields Ltd. reported in AIR 1962 S.C. page 361 para No. 7 has also held that :-
"In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal."
6. Earlier in the case of State of West Bengal v. The Administrator, Howrah Municipality reported in AIR 1972 SC. 749, Hon'ble Supreme Court had held that mere fact that the appellant is state, no special treatment should be accorded to the appellants. Para No. 27 from the said judgment is re-produced below :-
"the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State."
7. This Tribunal had occasion to follow the judgment of the Supreme Court in the case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (19) ECR 569 (SC) and in the case of Collector of Central Excise v. F.G.P. reported in 1988 (38) ELT 712. Thereafter, the Supreme Court in the case of Collector of Central Excise, Bombay-Il v. Supreme Industries Ltd. reported in 1990 (47) ELT A166 had confirmed the findings of the Tribunal where Tribunal had held that delay in the late filing of the appeal in the Tribunal is not condonable firstly there was no proper application on behalf of the Department for condonation of delay and secondly, the reasons for delay as given in the Dy. Collector's letter were not acceptable. In the matter before us Supreme Court in the case of Collector of Cus. v. Ajanta Tube Ltd. had confirmed the findings of the Tribunal.
8. In view of the above discussions, we are of the view that there was negligence on the part of the appellant and appellant was not prevented by sufficient cause for late filing of the appeals. We do not find it a fit case to exercise our discretion in condoning the delay in the terms of provisions of Sub-section (5) of Section 129A of the Customs Act, 1962. Accordingly, the above captioned 3 applications for condonation of delay are rejected.
9. Since we have rejected the applicant's prayer for condonation of delay in the above captioned 3 appeals the appeals as well as stay applications are dismissed being hit by limitation and we are not going into the merits of the same.