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TMI Blog1988 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... bed under Section 35B of the Central Excises & Salt Act, 1944. In fact, the appeal has been filed under Section 129A(2) of the Customs Act. However, on point regarding the delay, the respondents plea is that it has been filed beyond time by 113 days. In the condonation of delay application filed, the Appellant Collector's plea among others is that the impugned order was not served on the Collector of Customs but the same came to his notice only on 30-9-1984 and taking that date into reckoning there was no delay in filing the appeal. In the affidavit filed on behalf of the Collector, the circumstances under which the order came to his notice are also set out. The Date Chart given in the application in this regard is reproduced below : Order-in-appeal received by the adjudicating authority 20-7-84 on 31-7-84 File sent to dealing Group on Scrutiny by the Group and obtainment of 1-8-84 to &emsp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioned in the application for condoning the delay that in the meanwhile Shri D. Subramaniam, the Chief Regional Manager, Madras, was transferred to Delhi vide Circular dated 23rd August, 1986 and Shri K.S. Krishnamurthy got additional charge of looking after the work of the Chief Regional Manager, Madras also. This involved various administrative functions also such as sales, servicing, looking after the twelve subordinate offices situated in the States of Andhra Pradesh, Tamil Nadu and Kerala. It was also pointed out that his work also included arrangements and preparations for 2nd Parliamentary Committee of Members of Parliament on implementation of the 'Official Language' between 8-9-1986 and 10-9-1986. It is also pointed out that on 13th September, 1986 Shri K.S. Krishnamurthy took over additional charge as Chief Regional Manager, Madras. The various difficulties which he had to face are mentioned in paras (e) and (f) of para 5 of the affidavit filed in appeal. These facts are not disputed. But the fact remains that these facts explain the delay in filing the appeal after the expiry of period of limitation. In view of decision of Hon'ble the Supreme Court in the case of Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , had been sent to the Tariff Coordination Unit on 3-10-1984 and the appellant took still a long time to submit the appeal in the Registry of the Tribunal. He pleaded that before any delay could be condoned, it should be shown that there was sufficient cause and due diligence had been shown by the appellant. He cited in this regard the judgment in the case of National Chemical Industries v. Collector of Central Excise = 1986 (26) E.L.T. 151 and also the judgment of the Supreme Court in the case of State of West Bengal v. Howrah Municipality AIR 1972 SC 749. He pleaded that before any liberal view in regard to the condonation of, delay as held in the case of Collector Land Acquisition v. Mst Katiji referred to supra is taken there should be sufficient cause for the same. He pleaded that sufficient cause has not been shown in the case. He also pleaded that in that case delay involved was only 4 days and in the present case delay involved is of 113 days. He pleaded that the appellant had not shown any sense of urgency in the matter of filing the appeal as seen from the date chart submitted. He cited the orders of the Tribunal No. COD/731/86-C in appeal No. E/2088/C, No. Misc. 185/86C, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 981 consisting of one Assistant Collector, one Appraiser, one Examiner, one P.O. (S.G.), one Stenographer, one Upper Division Clerk and one LDC. Pending bringing into force of new Chapter XV of the Customs Act this unit was entrusted with the responsibility of considering reviews of the Appellate Collector's orders. It also contained the Collector's directions that with effect from 1-4-1981 the Appellate Collectors should serially number the Appellate Orders and issue one copy to the adjudicating officer and another copy to the T.C.U. With setting up of the Tribunal in October, 1982, the provisions of the S.O. were amended by the S.O. No. 6772, dated 29-10-1982. This incorporated procedure for filing appeals to the Tribunal against the orders of Collectors of Customs (Appeals). Time limits were stipulated at each stage for handling the papers. But the statutory requirements of Section 128A(5) were lost sight of and the situation as prevailing before the setting up of the Tribunal continued to prevail. The lacuna in the law was realised from the Ministry's telex F.No. 78, dated 3-1-1986 and this was rectified in the S.O. 6839, dated 24-1-1986. Even though therefore the Standing Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 129 of the Customs Act. This decision of the Tribunal has been followed by the Bench of the Tribunal in the case of Collector of Customs, Bombay v. Ruby Product Limited, Bombay = 1988 (11) ETR 60. We observe that the decision of the Three-Member, Special Bench in the case of S.B. Plastics referred to supra was not brought to the notice of the West Regional Bench. The Tribunal in that decision has observed as under : "A simple perusal of both the orders shows that the Collector of Customs, Bombay in para 2 of his order dated 25-6-1981 had written that the appellate Collector will send one copy of the order to the adjudicating authority and other direct to the Tribunal Coordination Unit. Thus the Assistant Collector, Coordination Unit was acting as an agent of the Collector. Section 153 of the Customs Act 1962, which relates to the service of the order or decision, is reproduced as under : "153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent, or (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here was no authorisation by the Commissioner of Income Tax to the Income Tax Officer to receive orders. In the matters before us, there are specific orders issued by the Collector of Customs, Bombay vide Order No. 6756, dated 25-6-1981 and 25-1-1985 wherein it was written by the Collector to the Collector of Customs (Appeals) to send one copy of the order to the adjudicating authority, other to the Coordination Unit in the office of the Collector of Customs. The Collector of Customs obviously does not receive the papers personally. Instead of sending the papers in the Receipt Section of the Collectorate, the Collector (Appeals) has sent to the Coordination Unit of the Tribunal in his office. For all purposes, the Assistant Collector, Coordination Unit had acted as agent of the Collector and now he cannot say that service on the Assistant Collector, Coordination Unit was no service on the appellant." Following the ratio of the decision in the case of S.B. Plastics and subsequent decision in the case of Ruby Products, we hold that the service of the order on the Collector in terms of Section 128A(5) read with Section 153 of the Customs Act was complete, with service of the order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or filing the appeal. No papers have been produced before us as to the course of the scrutiny and time taken by the Deputy Chief Chemist. A period of over seven weeks was consumed in scrutiny and getting this opinion. Nothing has been produced before us to show that this much time was indeed required for the purpose of scrutiny and the submission of opinion by the Dy. Chief Chemist. The date chart submitted and course of the handling of file does not reveal any sense of urgency on the part of the Collectorate for expediting filing of the appeal when the period of limitation had already run out. There is no plea from the revenue nor any fact on record to show that in fact the revenue was acting under the misapprehension that the appeal could be filed only with reference to the date of the perusal of the file by the Collector and not with reference to the receipt of the order in the Tribunal Coordination Unit. The file was, it is seen, approved for filing the appeal by the Collector on the 30th September, 1984 and the file was received in the Tribunal Coordination Unit for preparation of appeal on 3-10-1984. It is seen even after that it took about 5 weeks to file the appeal. We obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -deliberate delay. (5) There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. "Besides the Supreme Court decision (supra) on which Smt. Chander has placed reliance, there are other decisions of the Supreme Court on Section 5 of Limitation Act, 1963 - an analogous provision to sub-section (3) of Section 35B of Central Excises & Salt Act, 1944. Dealing with the provision in Ramlal and Others v. Rewa Coalfields Ltd. [AIR 1962 S.C. 361], the Supreme Court inter alia held as under - "(7) In construing Section 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 right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation pre ..... 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