Customs, Excise and Gold Tribunal - Bangalore
Hmt Ltd. vs Commissioner Of Customs, Chennai on 22 February, 2002
Equivalent citations: 2003(89)ECC744, 2002(142)ELT143(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the appellants M/s. HMT Ltd. with reference to the impugned order no. C Cus. 195 to 197/2000, dated 20-3-2000, passed by the Commissioner of Customs (Appeals), Customs House, Chennai. The appeal was also accompanied with stay application.
2. By impugned order the Commissioner (Appeals) has disposed of three appeals. According to the practice, the party was required to file three appeals. Apart from that the Commissioner (Appeals) has dismissed the appeals holding that the three appeals filed by the party before him were barred by time. He held that the maximum period of six months within which the appeal can be filed, but in all the three appeals delay in filing the claim is beyond condonable limits.
Section 128 of the Customs Act 1962, is as under :-
"SECTION 128. Appeals to [Commissioner (Appeals)] - (1) Any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a (Commissioner of Customs) may appeal to the [Commissioner (Appeals)] within three months from the date of the Communication to him of such decision or order:
Provided that the [Commissioner (Appeals)] may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.
(2) Every appeal............"
3. Sh. Rajesh Chandra Kumar, Id. Adv., appearing for the appellants submitted that there was no delay in presenting the appeals before the Commissioner (Appeals). He said that the appeal was filed before the Deputy Commissioner and time consumed before the wrong forum, should be excluded in terms of Section 14 of the Limitation Act. Referring to the affidavit filed by the Accounts Officer, he said that appeals were filed before the Dy. Commissioner on 19-7-99, against the orders dated 29-6-99, and 30-6-99, respectively, passed by the Dy. Commissioner of Customs Group 3 & 4. He said that Accounts Officer was under the bom fide belief that the appeals paper had to be filed with the officer passing the order and same would be forwarded by them to the appellate authority. On the receipt of the letter from Dy. Commissioner Group 3 & 4, calling upon them to pay the duties demanded under the orders, he has approached the office of the Commissioner Customs (Appeals) to ascertain about the position of the appeals and on knowing that no appeal was filed, and in view of the advice given by the Superintendent (Appeals), fresh appeals were presented before the Commissioner (Appeals). Sh. Rajesh Chandra Kumar contended that in view of this position, there was no delay in filing the appeals and time consumed in the process is to be excluded applying the principle underlying Section 14 of the Limitation Act. He also drew our attention to Section 14 of the Limitation Act which is as under-
"The Limitation Act, 1963
14. Exclusion of time of proceeding bonafide in court without jurisdiction (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceedings relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 ( 5 of 1908), the provisions of Sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.
Explanation - For the purposes of this section:
(a) in excluding the lime during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) mis-joinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
In support of his contention, he referred to the decision of Supreme Court in the case of P. Sarathy v. State Bank of India reported in AIR 2000 Supreme Court 2023, wherein it was held that Section 14 of the Limitation Act does not speak of a "Civil Court' but speaks only of a 'court'. If is not necessary that the Court spoken of in Section 14 should be a 'Civil Court'. Any authority of Tribunal having the trappings of a Court would be a 'Court' within the meaning of this section. He also referred to the decision of the Supreme Court in the case of Pasupathi Overseas Pvt. Ltd. reported in 1996 (83) E.L.T. 249 (S.C.), wherein it was held that the delay in filing the appeal could have been condoned by resort to the principle underlying Section 14 of the Limitation Act, particularly when the Tribunal possesses power to condone the delay in filing the appeal.
4. Smt. Radha Arun, appearing for Revenue referring to the proviso to Section 128 of the Act, submitted that in view of the restrictions imposed in the proviso, the Commissioner (Appeals) has no power to condone the delay beyond six months. Emphasising on the wordings of 'proviso', she said that if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months allow it to be presented within a further period of three months. She said that in the instant case, there was further delay of 129 days, 131 days and 156 days respectively, beyond a maximum period of six months and accordingly the Commissioner (Appeals) was just right in rejecting the appeals as barred by time.
5. We have carefully considered the matter. In the instant case, the appeals were presented before the Commissioner (Appeals) beyond a period of six months. It was contended on behalf of the party that proceedings initiated before the Dy. Commissioner by way of appeal is to be excluded applying the provisions of Section 14 of the Limitation Act. No specific case law was brought to our notice that Section 14 of the Limitation Act is applicable to the special statute. In the case of Pasupathi Overseas Pvt. Ltd. referred to by the appellant's Counsel, it was held that the delay in filing the appeal could have been condoned by resort to principle underlying Section 14 of Limitation Act particularly when the Tribunal possesses power to condone the delay in filing the appeal. Clause 5 to Section 129 A is as under :
"SECTION 129A. Appeals to the Appellate Tribunal.....
(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."
6. In view of the wordings of the Clause 5 of Section 129A, it is clear that no time is prescribed in condoning the delay if the Tribunal was satisfied that there was sufficient cause for not presenting the appeals within that period. But Proviso to Section 128 specifically provides that the Commissioner (Appeals) may condone the delay for a period of further three months if he is satisfied that the appellant could not present the appeal within that period. In this context, the observation made by the Karnataka High Court in the case of A. K. Boards and Doors v. Union of India reported in 2000 (115) E.L.T. 615 is relevant and the same is as under:
"5......... Right of appeal is a statutory right and therefore the Parliament has the power to put restriction on the exercise of such power. Simply because the right of appeal cannot be exercised after the expiry of six months, the proviso cannot be considered as unreasonable. Under different statutes, different restrictions have been placed on the exercise of power to file the appeal......"
".....The only point which has to be seen is whether the restriction imposed in restricting the delay of filing of appeal is violative of any provisions of the Constitution. Even the right to carry on the business could be with a reasonable restriction. It is not that the demand created by an authority under the Act is made absolute without any right of appeal. The provisions of Section 35 therefore cannot be considered to be violative of any provision of the Constitution of India. Once this conclusion is arrived at, this Court while exercising the power under Article 226 cannot direct to act contrary to the statutory provision or declare them unconstitutional. Since the statute itself has provided a limitation, the right has to be exercised within that period."
Similar view was expressed by Andhra Pradesh Court in the case of Shanthi Alloys Pvt. Ltd. v. CCE, Hyderabad reported in 1999 (109) E.L.T. 79 and the order in brief is as under :
"Delay in filing appeal beyond 90 days not condonable in view of specific provision of Proviso to Section 35(1) of Central Excise Act, 1944. We cannot say that the Tribunal has committed any illegality in dismissing the appeal filed against the order of the appellate; authority refusing to condone the delay and to entertain the appeal. In view of the specific provision contained in the proviso to Section 35(1) of the Central Excise Act, the condonation of delay beyond the period of 90 days does not arise. The ratio of the decision in G. Satyanarayana Reddy v. State of A.P. sought to be relied upon, by the appellant's counsel his no application as the provision with which the Division Bench was concerned in the said case was materially different and there was no embargo against entertainment of appeal after a particular time limit. In this view of the matter, we dismiss the writ petitions at the admission stage subject to the direction that the disputed duty shall not be collected for a period of six weeks."
7. The Tribunal has also taken similar view in the case of CCE, Jaipur v. Allied Electronics, reported in 1997 (95) E.L.T. 252 (T) holding that delay of eight months in filing the appeals before the Collector (Appeals) was not condonable under Section 35(1) of the Central Excise Act, 1944. It was observed that the appeal was filed beyond a period of eight months while maximum time admissible including that condonable is six months. The Collector (Appeals) was right in holding that appeal was hit by limitation.
8. Supreme Court has clearly held in the case of Miles India Ltd. v. Asst. Collector of Customs reported in 1987 (30) E.L.T. 641 (S.C.), that Tribunal as well as Customs Authorities arc bound by the statutory period of limitation. This view was affirmed by Supreme Court again in the case of Collector of Central Excise v. Doaba Cooperative Sugar Mills reported in 1988 (37) E.L.T. 478 (S.C.) that authorities functioning under Act are bound by its provisions. It is settled position now that Tribunal being a statutory authority in as much as creature of statute cannot go into the validity of the provisions of the very statute. In the facts and circumstances, particularly in view of the restrictions imposed under Section 128 of the Customs Act, we do not find any infirmity in the impugned order in dismissing the appeal as barred by time. Accordingly we uphold the impugned order and in the result appeal is dismissed.