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TMI Blog2001 (9) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... 523.90. The Customs Authorities were of the view that there was discrepancy in the description of the goods and the same was not complete. The cassettes were of professional grade and consequentially more expensive. Investigation into the matter was carried out and the petitioner was asked to state whether the cassettes were VHS, Betacam, etc. and also to indicate the width of the same. Petitioner submitted that the video cassettes were of VHS type and the width of each cassettes was 12.50 mm and of 180 minutes duration. The Customs Authorities did not accept petitioner's stand and the articles were seized under a reasonable belief that those were liable for confiscation under Section 111(d) of the Act. Petitioner requested the Commissioner of Customs, Custom House, Madras for waiver of show cause notice and prayed for a personal hearing in the matter. Accordingly personal hearing was granted. Petitioner's stand was that no specific licence was required for import of blank video cassettes. However, rejecting the submissions and contentions of the petitioner, the Commissioner passed an order on holding that the import of goods in question is restricted as they are consumer goods and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court under Section 130E of the Act and the writ petition is therefore not maintainable. According to him, dismissal of the application for condonation of delay is really an order in terms of Section 129B of the Act and therefore the order can only be assailed in an appeal to the Supreme Court. Strong reliance is placed on the decision of the Apex Court in Mela Ram and Sons v. Commissioner of Income-tax [(1956) 29 ITR 607 (SC)]. Additionally, it is submitted that the Tribunal on facts has come to hold that there was no justifiable reason to condone the delay. This is essentially a finding of fact arrived at by taking into consideration relevant materials and while exercising jurisdiction under Article 226 of the Constitution it is not permissible to hold the order to be illegal. Responding to the challenge regarding maintainability, learned Counsel for the petitioner submitted that the provisions, which were under consideration in Mela Ram's case (supra), are entirely different and the decision has no application to the facts of the case. It is also submitted that the rule relating to exhaustion of alternative remedy is not invariable in nature and in an appropriate case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscation under section 125; or (ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed Fifty thousand rupees. Every appeal against1A any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984 before the Appellate Tribunal and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section. xxx xxx xxx xxx xxx xxx xxx xxx xxx Every appeal29(3) under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be a fit one for appeal to the Supreme Court; or (b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment." Sections of the I.T. Act, so far as relevant, read as follows : "Section 30(2) - The appeal shall ordinarily be presented within thirty days of the payment of the tax deducted under sub-section (3A), (3B) or (3C) of section 18 or of receipt of the notice of demand relating to the assessment or penalty objected to or of the order in writing notifying the amount of total income on which the determination under sub-section (5) of section 23 was based and the apportionment thereof between the several partners or of the loss computed under section 24 or of the intimation of the refusal to pass an order under sub-section (1) of section 25A, or to register a firm under section 26A or of the date of the refusal to make a fresh assessment under section 27, or of the intimation of an order under sub-section (1) of section 23A or under section 48, 49 or 49F, as the case may be; but the Appellate Assistant Commissioner may ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity of showing cause against such enhancement; Provided further that at the hearing of any appeal against an order of an Income-tax Officer, the Income-tax Officer shall have the right to be heard either in person or by a representative. 33(2A) The Tribunal may admit an appeal after the expiry of the sixty days referred- to in sub-sections (1) and (2), if it is satisfied that there was sufficient cause for not presenting it within that period. 33(3) - An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in sub-section (2), be accompanied by a fee of one hundred rupees." 6.The language of Section 31 of the I.T. Act and Section 129B are contextually and conceptually same. In Mela Ram's case (supra), it was noticed by the Apex Court that there was conflict of opinion amongst different High Courts on the question whether an order dismissing an appeal presented under Section 30 as out of time is one under Section 30(2) or under Section 31 of the Act. If it is the former, there is no appeal provided against it; if it is the latter, it is open to be assailed un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accede to this contention. When power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the Appellate Assistant Commissioner has a discretion to excuse the delay, he has also a discretion in appropriate case to decline to do so. We are therefore of the opinion that the refusal to excuse delay is an order under Section 30(2)." 8.As regards the views expressed by the Bombay High Court that an appeal which is filed beyond period of limitation is in the eye of law no appeal unless and until there is condonation of delay and that in consequence an order passed thereon cannot be held to be passed in appeal so far as to fall within Section 31. The Apex Court further observed as follows : "Now a right of appeal is a substantive right, and is a creature of the statute. section 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment under section 23 is one of them. The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 31. It was held that the said provision was only one relating to the hearing and dismissal of appeal and if an order dismissing an appeal, as barred by limitation is one passed in appeal, it must fall within Section 31. As Section 33 confers a right of appeal against all orders passed under Section 31 it must also be appealable. Finally it was concluded that there was abundant authority for the view that Section 31 should be liberally construed to as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues such as limitation and the like. Thus in the background of what has been stated by the Apex Court in Mela Ram's case (supra) the inevitable conclusion is that an order passed by the Tribunal refusing to condone the delay is one passed in the Appellate jurisdiction of the Tribunal in terms of Section 129B. The next question is whether an appeal against it would lie to the Supreme Court. Learned Counsel for the petitioner submitted that the order passed by the Tribunal must relate amongst other things to the determination of any question having relation to the rate of duty of cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained." 12.In the background of language of Section 130E, it would not be proper to hold that the order passed by the Tribunal dismissing the appeal as barred by limitation is one covered by Clause (b) of Section 130E. The order cannot be subjected to appeal before the Supreme Court. That being the position, the writ petition is maintainable. 13.Further question which needs adjudication is whether any interference is called with the order passed by the Tribunal. The appeal was dismissed on the ground of limitation holding that no sufficient cause was shown for condoning the delay in presentation. It has been emphasized by the learned Counsel for the respondent as indicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (It is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 15.A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his case. There is no presumption that delay in approaching the Court is always deliberate. The Apex Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, vide Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal v. The Administrator, Howrah Municipality [AIR 1972 SC 749]. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise 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 the institution of the appeal. These views were highlighted by the Apex Court in State of Haryana v. Chandra Mani [1996 (1) AIR SCW 1672]. 19.We find that there is no finding recorded by the Tribunal that there was any deliberate attempt in delaying the matter or that there was culpable negligence or there was lack of bona fides. In fact, except barely saying that there was no justifiable delay, reasons for such conclusions have not been indicated. Reasons constitute heart beat of every order. If there is no reason, there is no life in the order. Looked at from that background we find that the Tribunal's order refusing to condone the delay is not appropriate. Explanation offered by petitioner cannot be said to be hollow or fanciful. The same has not been found to be false. The delay deserved condonation, which we direct. Accordingly, we set aside the order of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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