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TMI Blog1984 (4) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of the hearing for stay petitions we had brought it to the notice of the learned Counsels for the appellants as well as the learned Senior Departmental Representative that the stay petitions cannot be heard without passing an appropriate order in respect of the appellant's applications for condonation of delay and both the parties have agreed that the applications for condonation of delay should be heard first and then the stay petitions shall be disposed of. Shri P.K. Ghosh the learned Advocate for the appellant requested that the stay petitions are to be represented by his learned senior Shri Ajit Roy Mukherjee, Barrister and requested that this may be taken up on the 11th April, 1984 instead of 10th April, 1984. Accordingly, we had adjourned the above stay petitions to the 11th April, 1984. Shri Ajit Roy Mukherjee, the learned barrister along with Shri P.K. Ghosh and Shri P.K. Mukherjee, Advocates have appeared on behalf of the appellant. Shri Ajit Roy Mukherjee, the learned barrister has pleaded that all the six appeals are against the orders passed by the Collector (Appeals) and were presented in the Registry on the 30th January, '84. He has pleaded that all the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision of the Indo-Nepal Treaty, such cargo cannot be regarded as cargo meant for importation into India and as such, the Customs Act, 1962 was not applicable to the same. Another important point involved in the matter is as to whether Section 116 of the Customs Act, 1962 which deals with dutiable cargo is at all applicable to goods, which, if landed would not have been chargeable to duty. 5. In a large number of Writ Petitions made by the appellant in the Hon'ble High Court at Calcutta and in a large number of such writ petitions made by other parties, identical questions of law were taken before the Hon'ble High Court at Calcutta. The Hon'ble High Court was pleased to issue rule nisi and to make interim order for stay of realisation of penalty in such matters. The said rules are still pending. 6. In view of the pendency of such a large number of Matters in the High Court involving identical questions of law and particularly in view of the Judgment of the Division Bench of the Hon'ble High Court at Calcutta which is in favour of the appellant herein, the appellant was advised to move an application under Article 226 of the Constitution of India challenging the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed period. It is submitted that the said delay in preferring the appeal may be condoned. 10. The appellant submits that there is a substantial questions to be decided in appeal and there is a reasonable chance of the appeal being allowed. In particular it may be pointed out that the point taken in the appeal is covered by the said judgment of the Division Bench of the Hon'ble High Court at Calcutta and the contention of the appellant in the appeal are fully supported by the said decision of the Division Bench of the Hon'ble High Court at Calcutta. As such the appeal can by no means be regarded as a frivolous one. In any event there will be no difficulty in recovering the amount of penalty in the event the appeal fails. In the circumstances the requirement of prior deposit of penalty if insisted upon will cause undue hardship to the appellant. 11. Unless the delay in preferring the appeal is condoned and the requirement for prior deposit of the penalty is dispensed with the appellants would suffer irreparable loss and injury, and the appellants will be unable to avail of the statutory remedy by way of an appeal. 12. This is a bonafide application made in the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, High Court is proper forum to decide the question. An Appellate Tribunal has been set up to hear appeals from the orders passed by the Collector (Appeals). The petitioner can urge the points raised before the Appellate Tribunal either at New Delhi or in Calcutta. Under the circumstances I dismiss these applications. If thereby any delay in preferring the appeals or if any application is made by the petitioner for staying the penalty pending the disposal at the appeals. The appropriate Appellate Tribunal either at New Delhi or Calcutta will consider the petitioner's application sympathetically provided such application are made and appeals preferred within 3 weeks from date. All parties including the Appellate Tribunal to act on a signed copy minutes of this order subject to the usual undertaking. The learned Counsel for the appellant has pleaded that all the writs were decided on the 11th January, 1984 and the appellant was advised by the Hon'ble High Court to file appeals before the Customs, Excise & Gold (Control) Appellate Tribunal either in New Delhi or in Calcutta within 3 weeks from the 11th January, 1984. Accordingly, the appellant had filed the appeals on the 30t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He has submitted that if the appellant's application for condonation of delay are not considered, it will be a case of great injustice. He has pleaded for condonation of delay. 2. Shri A.K. Saha, the learned Senior Departmental Representative has opposed the condonation of delay and has pleaded that the filing of writ proceedings in the High Court and the time taken there is not sufficient cause and has pleaded that the appellants' applications for condonation of delay should be dismissed. 3. After hearing both the sides and going through the facts and circumstances of the case, we feel that the bonafide of the appellant should not be doubted. We very respectfully follow the observation of Hon'ble Mr. Justice P.C. Barooah of the High Court at Calcutta. While passing the order His Lordship has observed that this court should sympathetically consider the appellant's applications for condonation of delay. During the course of arguments, we had brought to the notice of learned Barrister Shri Ajit Roy Mukherjee that it is a settled law that the appellant is to explain each and every day's delay in the late filing of the appeal. We had also asked the learned Counsel for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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