TMI Blog1987 (2) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... application for Condonation of Delay. 2. The matter had come up for hearing before the Bench on the 10th day of December, 1986 and on that day Shri Manoj Arora, Advocate had appeared on behalf of the appellants. He had requested for adjournment on the ground that he intended to move an application for dispensing with the filing of the papers in other 97 matters. On his request the matter was adjourned to 19th December, 1986. On 19th December, 1986 Shri Manoj Arora had again appeared and the Bench had pointed out that the appellants have not filed memos of appeals on Form CA-3 in the 97 other matters. The Bench had brought it to the notice of the learned Advocate that in terms of the provisions of Rule 11 of the Customs, Excise and Gold (Control), Appellate Tribunal Procedure Rules, 1982, the Bench could only dispense with the filing of the annexures to the memo of appeal as required under Rule 9 of the CEGAT Procedure Rules, 1982. The matter was again adjourned. Thereafter the appellants presented 97 more appeals on Form No. CA-3 on the 26th day of December, 1986. By a separate application the appellants had made a request for dispensing with the filing of the documents alongwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri K.S. Krishnamurthy, S/o Shri K. Shankaranarayana Iyer, presently residing at C-17-18/Dhyanchand Marg, Asian Games Village, New Delhi. I, K.S. Krishnamurthy, the above named deponent, do hereby solemnly affirm and state as hereunder :- 1. That I am the Additional Regional Manager at Madras of the Indian Telephone Industries Ltd., and am looking after, inter alia, the shipping and clearance work of the Indian Telephone Industries, and, therefore, I am conversant with the facts of the case. Hence, I am competent to swear this affidavit. 2. That this affidavit is being filed in support of the application for Condonation of delay in tiling the appeals before this Hon ble Bench. 3. That the order of the Collector (Appeals), Customs, dated 17th April, 1986 was received by the Applicant on 28th May 1986 . and, therefore, the appeals were to be filed by 28th August, 1986. 4. That due to circumstances explained hereunder, the appeals could only be dispatched from Madras on 6-10-1986 and received in the Registry of this Hon ble Tribunal on 8-10-1986. Thus, there has been a delay of 40 days in filing this appeal. 5. The unavoidable circumstances leading to the delay are explai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Against normal arrivals of goods, goods involving payment of duty of Rs. WO lakhs were cleared/debonded through the Madras Customs House. This involved about 300 Bills of Entry being filed and the assessments completed. The deponent was thus heavily over-burdened and over worked and thus could not coordinate the various Bills of Entry and demand notices relating to the present case. The clearance of the goods bonded (warehoused) had to be expedited as the Madras Customs House authorities had advised early clearance of the items imported and were lying in the bonded warehouses. (f) Since the. Collector of Customs (Appeals) had passed a consolidated order in 98 cases, the applicant had to trace the files relating to all these 98 cases containing- the bills of entry, invoices and other connected papers. In the meanwhile, the applicant also received other orders relating to the same issue and till date a total of about 800 cases have been decided at various levels. The applicant had to take steps to file appeals in all those cases. 6. All these facts inevitably and unavoidably led to delay as the files were being processed in the office of the deponent and despite best effo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions for Condonation of Delay. The learned Senior Advocate has pleaded that there is no in-attention or negligence on the part of the applicants and there is also no lack of bona fide of the applicants. Dr. Gauri Shankar, the learned Senior Advocate has pleaded that there was a delay of about 40 days in filing the earlier appeal No. 2467/86-B2 and a delay of about 118 days in the filing of the other 97 appeals. Dr. Gauri Shankar, the learned Sr. Advocate has pleaded that in respect of the other 97 appeals though the delay is more but the applicant had duly paid the appeal fee at Rs.19,600. In support of his arguments he has referred to a judgement of the Tribunal in the case of CCE, Pune v. M/,s Durga Glass Works reported in 1986 (26) E.L.T. 405, where the Tribunal had followed the earlier judgement of the Hon ble Supreme Court in the case of Ramlal and Others v. Rewa Coalfields Ltd. In that case it has been observed that what the party applying for condonation has to show is why he did not file the appeal on the last day of limitation prescribed. In other words, the party would not have to explain the delay during the whole of the period of limitation. Dr. Gauri Shankar has furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public sector undertaking, had to get advice from its administrative Ministry, i.e. the Ministry of Communications for contesting the matter. For this purpose, the Chairman of the applicant company wrote to the Department of Telecommunication on 3rd July, 1986 and since no reply was received from them, a reminder dated 16th August, 1986 was sent to the Department of Telecommunications . In para No. (b) it has been mentioned that the Ministry of Communications, vide their letter dated 28th August, 1986 which was received by the applicant company on 5th September, 1986, conveyed that the applicant may contest the case. Shri Gopinath states that seeking permission from the Ministry is not a sufficient cause and there is no justification for condonation of delay. In support of his arguments he has relied upon a judgment of the Tribunal in the case of Collector of Central Excise, Vadodara v. Banco Aluminium Gujarat Aluminium, Baroda reported in 1987 (27) E.L.T. 102 wherein the Tribunal had held that The right to plea the bar of limitation is a valuable right and once it has accrued, it cannot be lightly divested by condonation of the delay beyond the expiry of the period prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that is sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. It is however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of a discretionary jurisdiction vested in the court by S.5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal from the principals is not a sufficient cause. It was further held in that case that the cause for delay which by due care and attention could have been avoided cannot be sufficient cause. The limitation law ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced at the risk of the hardship to a particular party. In condoning the delay the Court should be very cautious as the substantial rights of the other party are affected. Shri Gopinath states that in the present matter before the Bench the applicants had made a reference to the Ministry of Communications and the Ministry of Communications vide their letter dated 28th August, 1986 received by the applicant company on 5th September, 1986 conveyed that the applicant may contest the case. Shri Gopinath states that the intimation by the Ministry was sent on the fast date of limitation and in view of the judgement cited by him the applicants did not deserve that the discretion should be exercised in their favour. Shri Gopinath has also referred to the following judgements. (i) 1985 (21) E.L.T. 709, Collector of Central Excise, Calcutta Vs. East Coast Paper Products (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Dr. Gauri Shankar, the learned Sr. Advocate has pleaded that the applicants request for Condonation of Delay may be accepted otherwise the applicants shall suffer an irreparable loss. 11. We have heard both the sides and have gone through the facts and circumstances of the case. The applications for condonation of delay in respect of the original appeal as well as the supplementary appeals have already been reproduced earlier in this order. The affidavit of Shri K.S. Krishnamurthy, Additional Regional Manager has also been reproduced earlier. A simple perusal of the applications for Condonation of Delay show that the delay in the filing of the appeals is on account of transfer of the Regional Manager, procedural movement of file and grant of necessary permission from the Ministry of Communications. Dr. Gauri Shankar, the learned Sr. Advocate had placed heavy reliance on the judgement of the Tribunal in the case of Collector of Central Excise, Bhubaneswar v. Shree Durga Glass (P) Ltd. reported in 1986 (26) E.L.T. 405, 1986 (8) E.C.R. 707. The facts of the present case are very different. In that case the appeals were received in the Tribunal s office 2 days after the expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 5 of the Limitation Act. We are of opinion that such delays in Government offices are no justification for invoking the power of the court under Section 5 and would not amount to sufficient cause. Nevertheless, we have to take a practical view of the working of government without being unduly indulgent to the slow motion processes of its wheels. (Are we not painfully aware of the public criticism of delays in courts and apprehensive of a possible rebuke, physician, heal thyself?). When an appeal is pending, attention of counsel is usually drawn to the questions arising therein when it is posted for hearing. Quite probably, after the Full Bench decision was reported, the land acquisition appeals affected by that ruling were posted to be disposed of in its light. Government counsel would then have agreed to the absence of jurisdiction of the District Court and prayed for the return of the appeal. Meticulously to dissect the period of pendency of the appeal into the pre Full Bench and the post Full Bench sections is to be too artificial. Broadly speaking, there was no remissness in the conduct of the government pleader and none on the part of government". The judgement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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