TMI Blog1986 (7) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... lay in all the five cases should be condoned. 2. In view of the difference in opinion, these matters have been referred to me as President for decision in terms of sub-section (1) of Section 35D of the Central Excises and Salt Act, read with the proviso to sub-section (5) of Section 129C of the Customs Act. Hearing on these matters took place on 25-6-1986, when Shri B.R. Tripathi, SDR, appeared for the applicant Collector, and Shri A.N. Haksar, with Miss Nisha Srivastava, advocates, appeared for the respondents. After hearing both sides, orders were reserved. Shri Haksar was requested to file copies of certain judgments relied upon by him. This has since been done. 3. The facts of the case have been set out in detail in the orders of the two learned Members. It is therefore not necessary to recapitulate them. 4. On behalf of the applicant Collector, Shri Tripathi referred to the relevant dates. He submitted that the appeals had been dispatched by registered post on 28-11-1985. They should have been received by 2-12-1985, but were received only on 4-12-1985. He stated that normally the postal transit should not have taken more than 5 or 6 days (sic). The applicants had shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial justice the delay in this case should be condoned. Shri Tripathi also cited a judgment of the Hon ble Supreme Court in the case of State of Uttar Pradesh v. Bahadur Singh Others (1983 ECR 1556D). In this case the High Court had dismissed a writ petition under Articles 226 and 227 of the Constitution on the ground of delay. The Hon ble Supreme Court reversed the decision of the High Court, observing inter alia that in such a case no period of limitation had been prescribed. (That decision is not relevant to the present case.) 9. Finally, Shri Tripathi referred to the decision of the Tribunal in the case of Collector of Customs, Bombay v. Godrej Soap Ltd. (1985 (21) E.L.T. 529). In that case the Tribunal had condoned the delay. In arriving at this decision the Tribunal had observed that no special indulgence could be shown to the Government which in similar circumstances was not to be shown to any individual suitor. At the same time, taking a practical view of the working of Government without being unduly indulgent, it was held that on the facts of the case the delay in filing the appeal had been sufficiently explained. The delay was accordingly condoned. 10. On these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be taken into account for the purpose of deciding the question of limitation. 14. Shri Haksar submitted that the case was squarely covered by the decision of the Hon ble Orissa High Court in the case of Brajabandhu Nanda v. Commissioner of Income-tax, Bihar Orissa [1962 (44) ITR 668]. In that case, which arose out of the Indian Income-tax Act, 1922, appeals to the Income-tax Appellate Tribunal (ITAT) were sent by registered post from Cuttack on 2-4-1954 and received in Bombay on 7-4-1954. This was one day after the expiry of the limitation period of 60 days prescribed by Section 33 of the Indian Income-tax Act. An application for condonation of delay was made to the ITAT. The ITAT held that there was no sufficient cause shown to the delay and dismissed the appeals as time-barred. The matter went up in reference to the Orissa High Court. The High Court observed that the assessee did not appear to have explained why he waited for 56 days after he received the order of the Appellate Assistant Commissioner and that he appeared to have no justification for the delay. Accordingly, the Orissa High Court held that in the facts and circumstances of the case there was not sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been held that anusual postal delay could be a ground for condonation. However, in the cases before us there was no unusual delay. Since this judgment was delivered on 4-12-1975, it could be taken as an authority to the effect that only unusual postal delay could be a ground for condonation. 20. Shri Tripathi replied that each case had to be considered on its own merits. For the reasons already given, he submitted that in the present cases condonation was merited and should be given. 21. I have carefully considered the views of the two learned Members who heard these matters at the initial stage, as well as the submissions of the learned representatives of both sides. 22. The basic facts are that these appeals were dispatched (using that term to cover the handing over of the communication to the post office for transmission by Registered Post) 5 days before the expiry of the limitation period. They reached the office of the Tribunal on the 7th day, that is, two days after the expiry of the normal period of limitation. 23. The reasons for delay, as explained by the Department, have been set out in detail in the order of Member Shri Harish Chander. There is no dispute tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssa High Court, the Hon ble High Court held that the ITAT had failed to exercise its jurisdiction to condone the delay when there was sufficient cause. The High Court referred to its previous decision in the case of Brajabandhu Nanda, on which the ITAT had placed reliance on coming to its conclusion. The High Court observed that the answer rendered by the earlier full bench, namely that the delay in postal delivery could not be considered as constituting sufficient cause for not presenting the appeals within the prescribed period, was in the facts and circumstances of the earlier case. Referring to the facts of the case before it, the High Court observed that, where an assessee transmitted the appeal 9 days before limitation was to set in, in the facts of the case, it could not be said that there was any negligence or default on the part of the assessee. It held that the postal delay in this case was of an unusual type and could not be taken to be an event of the ordinary run. If ITAT had looked at the matter with an open mind and being conscious of the fact that it had jurisdiction to condone the delay, it would not have come to the conclusion that the appeal deserved to be dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an authority for taking a view different from that of the Hon ble Supreme Court. In any event, the Tribunal is bound by the judgment of the Hon ble Supreme Court. But the whole tenor of the Orissa High Court judgment in this case was against the application of limitation. This may also be seen from the following observations at the end of the judgment :- It must always be remembered as was pointed out by Lord Buck master in Montreal Street Railway Company v. Normandin - (1917) AC 170 (PC) that all rules of this type are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose. In the case of State of Gujarat v. Ramprakash P. Puri - (1970) 2 SCR 875 (SC), the Supreme Court pointed out that procedure is the hand-maid and not a mistress of law, intended to subserve and facilitate the course of justice and not to govern or obstruct it. Like all rules of procedure this rule demands a construction which would promote this cause. 30. It therefore appears to me that the judgment of the Hon ble Orissa High Court in the Kella Appalaswamy case gives no support to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the appeals were handed over to the postal department at Bhubaneswar ( dispatched ) on 28-11-1985. If they had been delivered to the Tribunal Office in New Delhi on 2-12-1985, i.e. the 5th day starting from 28-11-1985, they would have been taken as being within time. They were actually delivered on the 7th day. Shri Tripathi stated at the outset that the normal period of postal transit was 5 or 6 days. He later amended this to say that the appeals could have been delivered in 5 days. There is no particular basis for either of these figures of 5 or 6 days. The condonation application does not refer to any normal transit period. The question regarding the time normally taken by articles in postal transit is one where even a layman can claim to speak with some experience. It appears to me that when it comes to sending an article from a State capital to the Union capital, an official might be justified in assuming that 5 days was a sufficient time. No doubt if he were to exercise abundant or superabundant caution, he might proceed on the basis that postal transit could take 7 days, or 10 days, or even more. But there is a point beyond which abundant caution may amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holly without guidance in such a situation. As mentioned in para 13 above, in the case of Ramlal v. Rewa Coalfields Ltd. where the subject has been dealt with extensively, the Hon ble Supreme Court has endorsed the principle that the words sufficient cause ought to receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. Therefore the authority which is called upon to condone delay has also to consider whether its decision is such as to advance substantial justice, provided of course there is no negligence etc. If substantial justice is a material consideration when construing sufficient cause , the nature of the case and consequences of refusing to condone delay would necessarily have to be taken into account by the deciding authority. Factors such as the monetary stakes involved and the importance of the issue raised would be relevant for this purpose. 37. It therefore one takes into account the observations of the Hon ble Supreme Court regarding substantial justice , made in this very context, there is an escape from the unsatisfactory situation that the application of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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