9911796707
TMI Blog1985 (7) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 1983. The appeal was posted for bearing on the 10th day of June, 1985 and it was brought to the notice of the appellant that prima facie the appeal is hit by limitation as in Column No. 3 of Form CA-3, the date of communication of the order has been mentioned as 4th June, 1983. The learned SDR has requested for adjournment as the appellant intended to move an application for condonation of delay. In the interests of justice, the appeal was adjourned for the 16th day of July, 1985. 2. Shri A.K. Sarkar, the learned Senior Departmental Representative has appeared on behalf of the appellant and Shri G.P. Sureka, Chartered Accountant, appeared for the respondent. 3. Shri A.K. Sarkar, the learned SDR has pleaded that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the judgment of the Hon'ble Supreme Court cited by him a very liberal view should be taken in condoning the delay in filing of the appeal, which is only four days. He has argued that the appellant was prevented by sufficient cause in the late submission of the appeal and the delay in the filing of appeal may be condoned. 4. In reply, Shri Sureka, the learned Chartered Accountant has pleaded that the appellant has not been able to make out a case for condonation of delay and appeal should be dismissed being hit by limitation. 5. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that under sub-section (3) of Section 129A of the Customs Act, 1962, an appeal has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for condonation of delay, the appellant has mentioned the circumstances which resulted in the delayed submission of the appeal. Para Nos. 3 and 4 of the application for condonation of delay dated 3rd July, 1985 are again reproduced as under :- "Immediately after the Collector's order was obtained all formalities required in this connection were completed for filing the same before the Hon'ble Tribunal. This also required authorisation of the Collector for filing the appeal by an Officer which was obtained on 3-9-1985 that is on the last day of filing as because the Collector outside Calcutta for few days. Secondly, immediately after completion of all the documents it was ready for dispatch by special messenger. Since the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indolent. It is a rule devised on the principle of judicial circumstances and has to be applied wisely.' In the case before the Hon'ble Supreme Court cited by the learned SDR, the Hon'ble High Court had refused to entertain a delayed Writ Petition and it is a settled law that there is no limitation period prescribed by any statute for filing a writ petition. The present appeal before us is an appeal under Section 129A of the Customs Act, 1962 where a specific period for limitation has been provided. Thus, the judgment cited by the learned Senior Departmental Representative Shri A.K. Sarkar does not help him in any way. It is a settled law that the discretion in condoning the delay has to be exercised judicially and the appellant is expect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of S. 5 of the Limitation Act should also be available to the State." In the said judgment, the Hon'ble Supreme Court had discussed the case of Ramlal v. Rewa Coalfields Ltd., reported in AIR 1962 S.C. 361. In the said judgment, the Hon'ble Supreme Court had held as under :- "In construing S. 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for condoning delay in filing appeal beyond the prescribed period it is relevant to bear in mind two important considerations namely (1) the expiration of limitation for making appeal gives rise to a legal right in favour of the decree holder to treat the decree as binding between the parties and this legal right should not be light-heartedly disturbed and (2) if sufficient cause for excusing delay is shown the applicant is not entitled as a matter of right to condonation of delay but discretion is given to the court to condone delay and admit appeal." The Hon'ble Cuttack High Court in a case reported in ILR (1977) 2 Cut 648 (DB) had held that : "In dealing with the application for condonation of delay the Court has to keep in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
