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TMI Blog1988 (10) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced below: 3. Reasons for delayed appeal to CEGAT. The appeals to CEGAT against the subject orders-in-appeal is time barred. However, a request is made to condone the delay which occurred because the deptt. initially awaited the decision on the Revision Application made against the order-in-appeal No. 224/81, dated 2-2-1981 and latter lost track of the cases because of retirement of concerned Appraiser. The appeal was duly accompanied by an authorisation in favour of Shri S.P. Ghose, Asstt. Collector of Customs, Calcutta to file an appeal under Section 129A(2) of the Customs Act, 1962. Thereafter, five supplementary appeals with covering letter dated 10th January, 1986 were filed and sent per registered A.D. post and received in the Registry on 20th January, 1986. Thereafter, the appellant filed a detailed application for condonation of delay which was received in the Registry on 11th February, 1986. All the applications for condonation of delay are similar. The contents of one of the applications are reproduced below : 1. That your appellant filed an appeal under Sec. 129A(2) of C.A. 62 seeking to get order against the order passed by the Collector (Appeal) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. I have gone through the records of the case and I am acquainted with the facts and circumstances of the case. 3. I state and submit that the Order-in-Appeal No. Cal-Cus-499/81, dated 19-3-1981 was communicated by the office of the Appellate Collector of Customs, Calcutta to the Appraising Refund Section in Custom House, Calcutta on 1-9-1981 but not to the Collector of Customs, Calcutta directly. 4. I state and submit that on 2-9-1981 the Order-in-Appeal was put up in file to Shri R.K. Roy, Appraiser in Appraising Refund Section. He gave instruction in file on 5-9-1981 for requisitioning the original copy of Bill of Entry. 5. I state and submit that on 14-9-1981 the file was received by Shri B.C. Kayet, Upper Division Clerk in Appraising Refund Section. But neither the original copy of Bill of Entry was requisitioned nor the file was again put up to the Appraiser. 6. I state and submit that Shri R.K. Roy, Appraiser gave instruction in the file for requisitioning the original copy of Bill of Entry instead of examining the correctness of the claim as admitted by the Appellate Collector of Customs, Calcutta. The approval of the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deprive the Government of its revenue. 13. In the circumstances, the appellant most respectfully prays that the Learned Tribunal would be graciously pleased to condone the delay in filing appeal as there was sufficient cause for not presenting it within the stipulated period. DEPONENT VERIFICATION I, the deponent above named, verify on this 16th day of April, 1986 that the contents of the above affidavit are true and correct to my knowledge as derived from the official records. Nothing is false therein and nothing is concealed therefrom. DEPONENT. Subsequently, the Collector of Customs, Calcutta, also filed a supplementary affidavit duly sworn before a Notary Public on 18th July, 1986. The said affidavit is also reproduced below : 1. I am at present working as Collector of Customs, Bombay, but at the relevant time I was the appellant in the appeal before the Hon ble Customs, Excise Gold (Control) Appellate Tribunal. 2. I have read the affidavit of Shri S.N.S. Mahapatra dated 22-3-12986 filed in the said case and have accordingly examined the various records related to receiving of letter in Central Correspondence Section as well as receipt Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deponent above named, verify on this 18th day of July, 1986 that the contents of the above affidavit are true and correct to my knowledge as derived from the official records. Nothing is false therein and nothing is concealed therefrom. DEPONENT. 3. Shri G.V. Naik, the learned Joint Chief Departmental Representative, has appeared on behalf of the applicant. He has raised the following points : (i) The appeals filed by the revenue should be deemed to have been filed within limitation as in terms of the provisions of erstwhile Section 131(3) of the Customs Act, 1962, the Central Government on its own motion could annul or modify any order passed under Section 128 or Section 130 of the Customs Act, 1962. (ii) There was no provision under Section 128 of the Customs Act, 1962 to serve a copy of the order passed by the Appellate Collector of Customs to the Collector of Customs. Alternatively he has pleaded that in case the applicant s first argument is not accepted, the applicant was prevented by sufficient cause in the late filing of the appeals and the delay in the filing of the appeals should be condoned on account of the following reasons: (i) Amended sub-section (5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n must be condoned under Section 5 of the Limitation Act and the application under Section 17A of the West Bengal Premises Tenancy Act must be allowed. 1986(26) E.L.T. 1057 (CEGAT) Collector of Central Excise v. Sarabhai Chemicals. Amended Finance Bill, 1984 shows that there was no express provision making reduction in the period for seeking a revision under Section 35-E(3) from two years to one year, to have retrospective effect. The amended provisions came into effect from 11-5-1984 and in the instant case, since the order which was sought to be reviewed was passed on 12-1-1981 being prior to 11-5-1984, cannot be held to be hit by time bar in the absence of an express provision in the amending enactment giving the amendment retrospective effect. 5.1986 (Vol. 7) Excise Customs = 1986(25) E.L.T. 657 (Kar) Cases 171 Union of India and Another v. Suresh N. Shetty Sufficient cause liberal construction - substantial justice. 6-1986 (Vol. 6) Excise Customs Cases 175. 7-1985 (21) E.L.T. 863 (Tribunal) Collector of Customs Central Excise, Shillong v. Raidang Tea and Samdang Tea Estates and Others. Single appeal filed within limitation. Supplementary appeals filed subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on the following judgments : 1.1987(28) E.L.T. 65 (Tribunal) Collector of Customs, Bombay v. Kirloskar Cummins Ltd. Tribunal held that : Delay not condonable owing to negligence and lack of due care. Section 129A(2) of the Customs Act clearly enjoins that it is the Collector of Customs himself who has to take a decision for filing an appeal. In the instant case, the procedure seems to have been reversed, and the examination started from the stage of the appraiser who, curiously, is shown to have recommended acceptance of the order-in-appeal. The very procedure of processing the order-in-appeal was, therefore, repugnant to the letter and spirit of Section 129A(2). 2. 1986 (26) E.L.T. 124 Collector of Customs, Bombay v. S.B. Plaslic Industries and others Delay not condonable as no sufficient cause. 3. 1986(24) E.L.T. 365 (Tribunal) Collector of Central Excise, Madras v. Lucas TVs Ltd., Madras As per Section 36(2) of the Central Excises and Salt Act, 1944 which was in force prior to the period 11-10-1982 lime limit of one year (i.e. upto 11-4-1983) was available to the Government for reviewing the above mentioned order-in-appeal of the Appellate Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubtedly, as per the judgment of the Hon ble Supreme Court, a liberal view has to be taken, but the facts and circumstances of the present matter do not justify taking of a liberal approach in the instant case. 6. AIR 1962 Supreme Court 361 Ramlal and Others v. Rewa Coal Fields Ltd. The Hon ble Supreme Court had held that: even after sufficient cause has been shown, a party is not entitled to the condonation of delay as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5................. Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications for condonation of delay. 7. AIR 1975 Andhra Pradesh 109 Revenue Divisional Officer, Vijayawada v. T. Laxminarayana Delay in the filing of an appeal - Government does not hold position of greater privilege than other litigants. 8. 1987 (32) E.L.T.458 (S.C.) = 1987 (13) E.C.C. 115 Union of India and others v. Visveswaraya Iron Steel Ltd. Where application for condonation of delay in filing special leave petition was filed without offering any explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve percolated down to all the other courts in the hierarchy. As such a liberal approach is adoptable for condonation of delay in the light of following principles:- (i) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (ii) 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. (iii) 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. (iv) 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. (v) 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and as such, there is no lapse on the part of the Collector and it is a fit case for condonation of delay. 8. Shri Lakshmi Kumaran has again pleaded for rejection of the applications for condonation of delay. 9. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper appreciation of the facts relevant sub-section (3) and subsection (5) of erstwhile Section 131 are reproduced below: (3) The Central Government may of its own motion annul or modify any order passed under Section 128 or Section 130. (5) Where the Central Government is of opinion that any duty of customs has not been levied or has been short levied, no order levying or enhancing the duty shall be made under this section, unless the person affected by the proposed order is given notice to show cause against if within the time-limit specified in Section 28. Provisions of Section 129-A (2), (3) and (5) are also reproduced below: (2) The Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 128A is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the legislature did not introduce any savings clause and as such the right of the revenue to review the order without limitation came to an automatic end on 11th October, 1982. The Tribunal has already taken the view in the case of Collector of Central Excise, Madras v. Lucas TVs Ltd., Madras reported in 1986 (24) E.L.T. 365 and had relied on an earlier judgment of the Tribunal in the case of Atma Steels Pvt. Ltd. v. C.C.E., Chandigarh reported in 1984 (17) E.L.T. 331. Undoubtedly, in terms of the provisions of sub-section (2) of Section 129A, the Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, was not legal or proper, can direct the proper officer to file an appeal to the Appellate Tribunal. The respondent had all along agitated and Mr. Mahapatra mentioned in his affidavit that he had approached the Collector for the issue of the refund. It was only after the decision of the Tribunal in favour of the revenue, the department decided to file appeals before the Tribunal. Both the sides have cited judgments on the issue of condonation of delay. Undoubtedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld like to add that the applicant-Collector in his affidavit dated 16th April, 1986 before us, reproduced by brother Sh. Harish Chander in para 2 of his order, at Serial No. 7 of the affidavit, has stated that the period for filing the Revision Application under Section 131 expired on 1-3-1982. The appeal has been filed by him under Section 129A and the condonation of delay in filing the appeal has been sought for under Section 129A(5) of the Customs Act, 1962. On the admission of the Collector himself, the right for revision of the order under the provision of the Customs Act, as it stood at the relevant time when the order was passed by the Appellate Collector, stood extinguished on 1-3-1982, much before the amended provisions of Section 129 etc. for appeal before the Appellate Tribunal came into force. There is no saving provision in these amended appellate provisions giving fresh lease to any proceedings which already stood concluded under the erstwhile provisions. 14. It is also observed from the submissions made by the Jt. Chief Departmental Representative in the proceedings before us at the time of personal hearing that the appeal in a similar matter had been filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period for filing the revision application expired on 1-3-1982, the learned JCDR in the written submissions, has pleaded that the time available for filing the revision application was available without any time limit under the superseded provisions of Section 131 (3) of the Customs Act, 1962. In the absence of any saving clause, this right of revision stood extinguished with the repeal of this section. The argument is that right to appeal became available under the new provisions of Section 129, 129A etc. and other new appellate provisions for filing the appeal. There is no satisfactory reason given why the appeal could not be filed till May, 1985 much after the introduction of the new appellate provisions of Section 129, etc., of Customs Act. The reason given is that the Collector came to know of the impugned order only in 1985, much later and the appeals were filed within time after the order came to the notice of the Collector. We observe under the Removal of Difficulties order when the new provisions came into force, the period of six months for filing the appeal was made available, and this was in respect of such cases where the orders had been passed prior to the coming into ..... X X X X Extracts X X X X X X X X Extracts X X X X
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