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TMI Blog1986 (8) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... t the imported goods were not meant for power projects which were covered by Notification No. 71/85-Cus. dated 17-3-1985, he filed an appeal to the Tribunal against the aforesaid order of the Collector of Customs (Appeals), and this has been registered under CD(SB)(WR) 612/86. Against Serial No. 3 of the prescribed proforma for filing of the appeal to the Tribunal it has been mentioned in the appeal that the Collector (Appeals) order was received by the appellant on 9-8-1985. The Principal Collector s appeal there against was filed with the Tribunal on 6-3-1986 which was beyond the normal period of three months prescribed under Section 129A(3) of the Customs Act. Hence the present application by the Principal Collector requesting for condonation of the delay in admission of his appeal. 2. Shri Sethna submitted that the copy of the Collector (Appeals) order was not served on the applicant Principal Collector as required under Section 128A(5) of the Customs Act as no copy of the order-in-appeal was endorsed to the Principal Collector of Customs. Hence there was no delay in presentation of the appeal. Shri Sethna submitted that this was a statutory requirement which had not been com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirements of Section 128A(5). As regards the Respondent s contention before the Hon. Bombay High Court that the Principal Collector had issued a Standing Order on the subject under which his copy of the Appellate order was required to be sent to the Asstt. Collector, Tribunal Co-ordination Unit, Shri Sethna argued that the provisions of the Standing Order cannot be contrary to the provisions of the law. It was the duty of the Collector (Appeals) 10 serve a copy of the order in appeal on the Principal Collector and this was not done in the present case. Therefore, the Principal Collector remained ignorant of the order of the Collector (Appeals) and he could not file the appeal in time. As regards the alternate submission for condonation of the delay in presentation of the appeal, Shri Sethna stated that no responsible officer in the Customs House came to know of the Collector (Appeals) order. The Collector (Appeals) order was received by the clerk in K Group on 9-8-1985 and this was sent to the clerk in the Contract Section of the Custom House. The Order-in-Appeal was never put up before the Appraiser who could examine the same and put up to the Asstt. Collector and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s per the Standing Order, the copy marked for A.C./TCU was meant to be served on the Collector of Customs. He further contended that this had actually been received by the Collector on 8-8-1985 as mentioned by Kum. R. Shakuntala, Asstt. Collector of Customs who had filed an affidavit on 10-3-1986 in the High Court on behalf of the Union of India and Others. In this affidavit Kum. Shakuntala had further deposed that the appeal to the Tribunal could not be filed within three months i.e. by 7-11-1985 due to over-loading of work and this was due to inadvertence. As opposed to this reason for the delay in filing the appeal to the Tribunal, the prayer of Shri Prem Shankar for condonation of the delay stated that there was inordinate delay in filing the appeal which was regretted. It also added that the order of the Collector (Appeals) was unfortunately lost sight of and hence the appeal could not be filed in time. The matter was revived only on receipt of the Ministry s letter F.No. 346/67/85-TRU dated 19-7-1985 asking for the Custom House views and practice with regard to the assessment of captive power plants and the issue of Custom House Public Notice No. 164 dated 19-11-1985. Yet ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Public Notice. Even after the issue of the Public Notice on 19-11-1985, there was no explanation for the delay in presenting the appeal which was done on 6-3-1986. After the Tribunal s order on 11-4-1986, the respondents had filed a further affidavit dated 23-4-1986 through Shri N.M. Contractor of the Respondent Co. Pointing to Paragraphs 3(c) of Shri Contractor s affidavit, Shri Kotwal stated that the respondent s advocates had addressed a letter to Shri R.L. Sethi, Asstt. Collector of Customs (Appeals) (Exhibit A to the affidavit was a copy of this letter). Through this letter, the respondents had inquired regarding the reason for furnishing a copy of the Appellate order to A.C./T.C.U. and what was required to be done with that copy. But the respondents had not received any reply from the Asstt. Collector. The respondents had also requested for the copies of the Standing Orders but these were not furnished to them. After the issue of the Appellate order dated 17-7-1985 there was correspondence between the Bombay Custom House and the Pune Customs authorities. The Bombay Customs authorities would have conveyed the order of the Collector (Appeals) to the Pune Customs autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K Group, the explanation was not satisfactory. Shri Kotwal therefore prayed that the application should be dismissed. He relied in this behalf on the Tribunal s decision in the case of Hindustan Lever Ltd. 1986 (24) E.L.T. 639. He further relied on the decision in the case of Collector of Customs, Calcutta v. Calcutta Hardware Stores reported in 1985 (22) E.L.T. 590 and also on the decision in the case of Mahant Metal Works 1986 (24) E.L.T. Page 39. These decisions lay down that even though the applicants had good grounds in appeal, the delay in presentation of the appeal could not be condoned merely for this reason. As regards the applicant s reliance on the decision of the Bombay High Court in the case of State Bank of India reported in AIR 1986 BOM 246, Shri Kotwal contended that this decision did not cite any authority. On the other hand, the Supreme Court s decision in AIR 1972 SC 749 clearly lays down that sufficient cause for condoning the delay cannot be construed too liberally when Govt. was a party. Shri Kotwal further relied on the decision of Patna High Court in AIR 1985 Patna 187 to Say that wider application could not be given to the meaning of sufficient cause in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, one P.O. (S.G.), one stenographer, one U.D.C. and, one L.D.C. Pending bringing into force of the new Chapter XV of the Customs Act this unit was entrusted with the responsibility of considering reviews of the Appellate Collector s orders. It also contained the Collector s directions that with effect from 1-4-1981 the Appellate Collector should serially number the Appellate orders and issue one copy to the adjudicating officer and another copy to the T.C.U. With the setting up of the Tribunal in October 1982, the provisions of the S.O. were amended by the S.O. No. 6772 dated 29-10-1982. This incorporated the procedure for filing appeals to the Tribunal against the orders of Collectors of Customs (Appeals), Time limits were stipulated at each stage for handling the papers. But the statutory requirements of Section 128A(5) were lost sight of and the situation as prevailing before the setting up of the Tribunal continued to prevail. The lacuna in the law was realised from the Ministry s telex F No. 78 dated 3-1-1986 and this was rectified in the S.O. 6839 dated 24-1-1986. Even though therefore the Standing Orders were a creation of the Collector, they were not in consonance with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India AIR 1986 BOM 246. In this judgment, the Bombay High Court drew a distinction between Public institutions like the State Bank of India and Private parties. The relevant observation of the Hon. Bombay High Court are reproduced below :- What weighs with us in condoning the delay is the fact that public institutions like banks in the present case should not be treated on part with private individuals and institutions. The property of the public institutions belongs to the society in general and not to any individual or group of individuals in particular. Precisely for this reason, it appears that no particular individual is interested in safeguarding it. What belongs to all belongs to none in particular. The affairs of public institutions are managed by paid employees, some of whom are interested only in their salaries. As long as their salaries and jobs are not threatened, they take the least care in safeguarding the interests of the institutions they serve. In the hierarchy of responsibility in the bureaucratic set up which invariably accompanies these institutions, the responsibility for the loss to the institution is hard to fix, and the employees take advantage of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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