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TMI Blog1994 (8) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... nd specifically mentions of filing appeal against the order before Collector (Appeals). The applicant did not choose to file the appeal in time. After a lapse of 6 months from the date of the order, they have filed the appeal, on the ground that their consultant had given them the advice that a separate appeal is not required to be filed. The ld. Collector (Appeals) has held that the excuse, however, does not justify the in-ordinate delay of 3 months in filing the appeal . 2.We have heard Sh. M.A. Rangaswamy, ld. advocate for the appellant and Sh. K.K. Dutta, ld. JDR for the Revenue. 3. The Bench had directed the counsel to file the affidavit of the consultant, who is said to have given the wrong advice. The applicant, through the affidavit of Shri D.K. Varshney, Assistant Manager, Finance and Administration has explained that the said consultant Shri V.B. Singh has not agreed to give the affidavit, as he does not want to come into picture. Shri M.A. Rangaswamy has argued that as there was wrong advice given not to file the appeal, it is a sufficient ground to explain for condonation of delay and hence stay of recovery and waiver of pre-deposit should be granted. There is no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said authority as being sufficient cause for the inordinate delay of three months in filing the appeal. Hence, their COD application was rejected and consequently the appeal was also rejected as time barred. 4.2 Learned advocate has further added that Shri V.B. Singh, consultant of the applicants who had advised the applicants not to file the appeal since the matter regarding classification was pending before CEGAT, had taken a plea before the original authority during the course of personal hearing on 17-12-1991 that the present matter for demand of duty be kept pending till the issue of the classification is decided by the Collector (Appeals). Thereafter, the issue of classification was decided in January 1992 by the Collector (Appeals) and against which the applicants have already filed an appeal before the CEGAT which is still pending decision. 4.3 In the aforesaid circumstances, learned advocate for the applicants has submitted that non-furnishing of an affidavit by the previous consultant giving a wrong advice to the applicants for not filing the appeal in time be not made the ground for throwing him out against the demand of duty made by the department. No wilful neglig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eshold 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as having been filed in time, as held by the Technical Member. Sd/- P.C. Jain Member (T) Sd/- S.L. Peeran Member (J) [Order per : P.K. Kapoor, Member (T)]. - The following points of difference have been referred to me for opinion : Whether in the facts and circumstances of the case the stay petition is required to be rejected and the applicants are directed to deposit the entire amount within a period of eight weeks, as held by the Judicial Member. OR Whether in the facts and circumstances of the case the stay petition is required to be allowed unconditionally and the appeal itself is required to be remanded to the Collector of Customs Central Excise (Appeals), Ghaziabad for deciding the matter after treating the appeal before it as having been filed in time, as held by the Technical Member. 9. Arguing on behalf of the applicant, Shri M.A. Rangaswamy, Advocate stated that the applicant had sought waiver of pre-deposit of Rs. 1,26,086.90 for the period July, 1989 to January, 1990. He stated that the appellants were seeking classification of E.H.T./F.B.T. Transformers for T.V. Set under Heading 85.29, whereas the Department had classified the goods under Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s). He submitted that under these circumstances the Learned Member Technical had correctly observed that the interest of the appellant should not be affected on account of the wrong advice given by the Consultant and the stay application was required to be allowed on this ground itself and the matter needed to be referred to the lower appellate authority for deciding on merits after treating the appeal as having been filed within the prescribed time limit. 10. On behalf of the respondent, Shri B.K. Singh, SDR stated that the only ground on which the applicant had sought condonation of delay in filing the appeal before the Collector (Appeals) was that he was prevented by sufficient cause from preferring an appeal within the prescribed period on account of the wrong advice given by their Consultant. He stated that having regard to this submission, the Tribunal had directed the applicant to file an affidavit of the concerned Consultant. He submitted that the failure on the part of the appellants to bring on record the affidavit of the Consultant affirming that he had wrongly advised them was indicative of the fact that wrong advice, as claimed by the applicant, was never given by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me barred on the ground that there was delay of over three months in filing the appeal. The Collector (Appeals) held that the appellants claim that the delay in filing the appeal was on account of the wrong advice given by their Consultant that no separate appeal was required to be filed in the matter since the decision in another appeal relating to their classification list was pending before the Collector (Appeals) was not a sufficient ground justifying the condonation of inordinate delay of three months in filing the appeal. As held by the Hon ble Supreme Court in the case of Ramlal Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 SC 362, that after the expiry of limitation the respondent acquires substantial rights and the appellant has to explain each and every day s delay. Since the only ground on which the delay in filing of the appeal before the Collector (Appeals) was sought to be explained by the appellant was that they were not correctly advised by their Consultant, the Tribunal had directed that in order to bring out the facts in this regard the appellant should file an affidavit of the concerned Consultant. The appellant has not filed the affidavit as directed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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