9911796707
TMI Blog1988 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excises Salt Act, 1944. In fact, the appeal has been filed under Section 129A(2) of the Customs Act. However, on point regarding the delay, the respondents plea is that it has been filed beyond time by 113 days. In the condonation of delay application filed, the Appellant Collector s plea among others is that the impugned order was not served on the Collector of Customs but the same came to his notice only on 30-9-1984 and taking that date into reckoning there was no delay in filing the appeal. In the affidavit filed on behalf of the Collector, the circumstances under which the order came to his notice are also set out. The Date Chart given in the application in this regard is reproduced below : Order-in-appeal received by the adjudicating authority 20-7-84 on 31-7-84 File sent to dealing Group on Scrutiny by the Group and obtainment of 1-8-84 to Dy. CC opinion on 22-9-84 Submission to Collector with a proposal for filing the 20-9-84 appeal Collector approves the proposal on 30-9-84 File received in T.C.U. for preparation of 3-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that his work also included arrangements and preparations for 2nd Parliamentary Committee of Members of Parliament on implementation of the Official Language between 8-9-1986 and 10-9-1986. It is also pointed out that on 13th September, 1986 Shri K.S. Krishnamurthy took over additional charge as Chief Regional Manager, Madras. The various difficulties which he had to face are mentioned in paras (e) and (f) of para 5 of the affidavit filed in appeal. These facts are not disputed. But the fact remains that these facts explain the delay in filing the appeal after the expiry of period of limitation. In view of decision of Hon ble the Supreme Court in the case of Collector of Land Acquisition Anantnag and another v. Mst. Katiji and others = 1987 (28) E.L.T. 185 (S.C.), we find that there was sufficient cause for condonation of delay in filing the appeals. The delay in this case in filing the appeal was 40 days. His attention was drawn to the fact that the respondents had indicated that there was a delay of 113 days based on the receipt of the order on 28-4-1984 as shown in C.A. 3 Form. He pleaded that the date of receipt of the order could not be taken to be 28-4-1984 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f West Bengal v. Howrah Municipality AIR 1972 SC 749. He pleaded that before any liberal view in regard to the condonation of, delay as held in the case of Collector Land Acquisition v. Mst Katiji referred to supra is taken there should be sufficient cause for the same. He pleaded that sufficient cause has not been shown in the case. He also pleaded that in that case delay involved was only 4 days and in the present case delay involved is of 113 days. He pleaded that the appellant had not shown any sense of urgency in the matter of filing the appeal as seen from the date chart submitted. He cited the orders of the Tribunal No. COD/731/86-C in appeal No. E/2088/C, No. Misc. 185/86C, in this regard. 5. We observe from the record that the order of the Collector (Appeals) has been endorsed to the Assistant Collector (T.C.U.) Customs House, Bombay as also to the Assistant Collector (Refund). The date chart submitted by the applicant covers the period 20-7-1984 to 6-11-1984 when the appeal is stated to have been despatched. It has been set out in the date chart that the order-in-appeal was received by the adjudicating authority on 20-7-1984. The date chart obviously has been given with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and another copy to the T.C.U. With 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 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 the requirements of Section 128A(5) with the result that the Collector was deprived of his statutory right of filing an appeal to the Tribunal. There is nothing in the standing Orders which would show that the Tribunal Coordination Unit was set up as the agency by the Collector to receive the orders of the Collector of Customs (Appeals) on his behalf. Therefore we are not inclined to accept the contention of Shri Kotwal that this uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay in para 2 of his order dated 25-6-1981 had written that the appellate Collector will send one copy of the order to the adjudicating authority and other direct to the Tribunal Coordination Unit. Thus the Assistant Collector, Coordination Unit was acting as an agent of the Collector. Section 153 of the Customs Act 1962, which relates to the service of the order or decision, is reproduced as under : 153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent, or (b) if the order, decision, summons or notice cannot be served in the manner provided in C .(a) by affixing it on the notice-board of the customs house." Shri A.S. Sunder Rajan, the learned JDR cited the judgment under the Income Tax Act, 1961. He laid special emphasis on the case of Hindustan Development Corporation v. ITO, Spl. Circle 3 and others reported in 118 ITR 873. Headnote from the said judgment is reproduced as under :- An appeal was preferred to the Tribunal by the Commissioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not receive the papers personally. Instead of sending the papers in the Receipt Section of the Collectorate, the Collector (Appeals) has sent to the Coordination Unit of the Tribunal in his office. For all purposes, the Assistant Collector, Coordination Unit had acted as agent of the Collector and now he cannot say that service on the Assistant Collector, Coordination Unit was no service on the appellant. Following the ratio of the decision in the case of S.B. Plastics and subsequent decision in the case of Ruby Products, we hold that the service of the order on the Collector in terms of Section 128A(5) read with Section 153 of the Customs Act was complete, with service of the order on the Assistant Collector (TCU) and it was done on the date when the Assistant Collector (T.C.U.) received the order and which date as held above, based on the entry in the C.A.3 Form is 28-4-1984. The delay therefore in the present case has to be reckoned with reference to this date. We observe from the Collector s application for condonation of delay as also in the pleas made before us that it has not been explained as to what happened to the order received by the Assistant Collector (TCU) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collectorate for expediting filing of the appeal when the period of limitation had already run out. There is no plea from the revenue nor any fact on record to show that in fact the revenue was acting under the misapprehension that the appeal could be filed only with reference to the date of the perusal of the file by the Collector and not with reference to the receipt of the order in the Tribunal Coordination Unit. The file was, it is seen, approved for filing the appeal by the Collector on the 30th September, 1984 and the file was received in the Tribunal Coordination Unit for preparation of appeal on 3-10-1984. It is seen even after that it took about 5 weeks to file the appeal. We observe nothing has been produced before us to show that there was any hold-up at any level when the papers for filing the appeals were being processed or somebody had been remiss in expediting the filing of the appeal. The whole matter it appears to us has been dealt with in a very routine manner. The decision of the Supreme Court in the case of Mst Katiji and Others = 1987 (28) E.L.T. 185 SC does not help them. Taking note of the decision this Tribunal in the case of Collector of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Smt. Chander has placed reliance, there are other decisions of the Supreme Court on Section 5 of Limitation Act, 1963 - an analogous provision to sub-section (3) of Section 35B of Central Excises Salt Act, 1944. Dealing with the provision in Ramlal and Others v. Rewa Coalfields Ltd. [AIR 1962 S.C. 361], the Supreme Court inter alia held as under - (7) 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. In other words, when the period of limitation prescribed has expired the decree-holder has obtain a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. In the State of West Bengal v. Administrator, Howrah Municipality and Others [AIR 1972 S.C. 749], the Hon ble Supreme Court. has held as under- Mr. D. Mukherji, learned counsel for the first respondent, is certainly well-founded in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
