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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 ..... 6. CD(CAL) 12/84 9-7-1982 30-1-1984 Six stay petitions arising out of all the aforesaid six appeals have also been filed. The appellant has filed six applications for condonation of delay in the filing of the appeals. The above six stay petitions were posted for hearing for the 10th April, 1984. Before the 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 Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of the Hon ble High Court at Calcutta in Birendra Bahadur Pandey v. Gramophone Company Limited Others which was delivered by the Hon ble Mr. Justice Sabyasachi Mukharji and the Hon ble Mr. Justice Subhas Chandra Sen on 9th and 10th February, 1983 holding inter alia that Nepal being a landlocked country not having a port of its own and having regard to 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of writ petitions are already pending covering the said point, the appellant had reasons to believe that the said application under Article 226 of the Constitution would be the proper remedy against the said order of the learned Collector (Appeals) and as such, the appellant did not prefer the appeal before this learned Tribunal within the prescribed 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eals) is erred inter alia, in holding that the provision of Section 116 of the Customs Act, 1962 was applicable to the cargo which involves the subject matter of these writ petitions. According to Mr. Roy Mukherjee these cases clearly come within Section 117 of the aforesaid Act. Mr. Roy Mukherjee further submits that as these applications raise a question of jurisdiction, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not accepted, his alternative plea is that the delay may be condoned keeping in view the provisions of Section 14 and Section 5 of the Limitation Act, 1963. He has pleaded that the appellant had all along been diligent and had filed the writs bonafidely in the High Court and the delay in filing of appeals is not much especially in the five appeals except appeal No. 12/84. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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