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TMI Blog1988 (10) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... CEGAT against the subject orders-in-appeal is time barred. However, a request is made to condone the delay which occurred because the deptt. initially awaited the decision on the Revision Application made against the order-in-appeal No. 224/81, dated 2-2-1981 and latter lost track of the cases because of retirement of concerned Appraiser." The appeal was duly accompanied by an authorisation in favour of Shri S.P. Ghose, Asstt. Collector of Customs, Calcutta to file an appeal under Section 129A(2) of the Customs Act, 1962. Thereafter, five supplementary appeals with covering letter dated 10th January, 1986 were filed and sent per registered A.D. post and received in the Registry on 20th January, 1986. Thereafter, the appellant filed a detailed application for condonation of delay which was received in the Registry on 11th February, 1986. All the applications for condonation of delay are similar. The contents of one of the applications are reproduced below : "1. That your appellant filed an appeal under Sec. 129A(2) of C.A.'62 seeking to get order against the order passed by the Collector (Appeal) Calcutta u/s. 128A of C.A.'62 as the appellant was of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced below : "1. I am working as Collector of Customs, Calcutta and I am the appellant in the appeal before Hon'ble Customs, Excise and Gold (Control) Appellate Tribunal. 2. I have gone through the records of the case and I am acquainted with the facts and circumstances of the case. 3. I state and submit that the Order-in-Appeal No. Cal-Cus-499/81, dated 19-3-1981 was communicated by the office of the Appellate Collector of Customs, Calcutta to the Appraising Refund Section in Custom House, Calcutta on 1-9-1981 but not to the Collector of Customs, Calcutta directly. 4. I state and submit that on 2-9-1981 the Order-in-Appeal was put up in file to Shri R.K. Roy, Appraiser in Appraising Refund Section. He gave instruction in file on 5-9-1981 for requisitioning the original copy of Bill of Entry. 5. I state and submit that on 14-9-1981 the file was received by Shri B.C. Kayet, Upper Division Clerk in Appraising Refund Section. But neither the original copy of Bill of Entry was requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; I state and submit that a consolidated appeal against six Order-in-Appeal including the Order-in-Appeal in this case was submitted to Hon'ble Customs, Excise and Gold (Control) Appellate Tribunal on 22-5-1985. On 10-1-1986 separate individual appeal for this case was submitted to Hon'ble Tribunal. 12. I state and submit that the negligence of duly/improper discharge of duty on the part of officers should not deprive the Government of its revenue. 13. In the circumstances, the appellant most respectfully prays that the Learned Tribunal would be graciously pleased to condone the delay in filing appeal as there was sufficient cause for not presenting it within the stipulated period. DEPONENT VERIFICATION I, the deponent above named, verify on this 16th day of April, 1986 that the contents of the above affidavit are true and correct to my knowledge as derived from the official records. Nothing is false therein and nothing is concealed therefrom. DEPONENT." Subsequently, the Collector of Customs, Calcutta, also filed a supplementary affidavit duly sworn before a Notary Public on 18th July, 1986. The said affidavit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letters are received in the various Sections unless they are examined in the relevant file and submitted to me for my perusal and orders, I do not become aware of the issues raised therein. 9. I state and submit that in view of the above, facts stated in my Affidavit dated 16-4-1986 do not require any change in that the matter was first brought to my notice only on 9-4-1985. 10. I state and submit that in that consolidated appeal in these cases was filed on 22-5-1985 the other parts in the Affidavit of Shri S.N.S. Mahapatra dated 22nd April, 1986 are not relevant as the matter was already before the Customs, Excise & Gold (Control) Appellate Tribunal for decision. DEPONENT VERIFICATION I, the deponent above named, verify on this 18th day of July, 1986 that the contents of the above affidavit are true and correct to my knowledge as derived from the official records. Nothing is false therein and nothing is concealed therefrom. DEPONENT." 3. Shri G.V. Naik, the learned Joint Chief Departmental Representative, has appeared on behalf of the applicant. He has raised the following points : (i) The appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sarily to be conducted through the agency of a large number of officials and authorities." 2. AIR 1961 Supreme Court 1500 Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Another. 3. 1983 ECR 1556 State of Uttar Pradesh v. Bahadur Singh and Others "Public interest must be considered before dismissing a delayed petition in which the delay is justifiable." 4. AIR 1979 Supreme Court 566 Rajendra Nath Kar v. Gangadas and Others. In the above case the appellant was wrongly advised to file a revision application instead of preferring an application. As soon as the revision application was disposed of, the appellant filed an application within thirty days. The Hon'ble Supreme Court had held that the delay in the filing of the application must be condoned under Section 5 of the Limitation Act and the application under Section 17A of the West Bengal Premises Tenancy Act must be allowed. 1986(26) E.L.T. 1057 (CEGAT) Collector of Central Excise v. Sarabhai Chemicals. Amended Finance Bill, 1984 shows that there was no express provision making reduction in the period for seeking a revision under Section 35-E(3) from two years to one year, to have retrospective effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1983 E.L.T. 1596 (S.C.) where the Hon'ble Supreme Court held that : "Section 131(5) of the Customs Act, 1962 speaks of limitation only with regard to non levy or short levy but it does not speak of any limitation in regard to revision by the Central Government of its own notice to annul or modify any order of erroneous refund of duty." Mr. Lakshmi Kumaran argued that subsequent order of the Tribunal in favour of the revenue does not help the department in any way. He has referred to the application for condonation of delay dated 6th February, 1986 and the earlier and subsequent affidavits of Shri S.N.S. Mahapatra. Shri Lakshmi Kumaran has argued that sufficient revenue is involved is not a sufficient cause in the late filing of the appeals. He has relied on the following judgments : 1.1987(28) E.L.T. 65 (Tribunal) Collector of Customs, Bombay v. Kirloskar Cummins Ltd. Tribunal held that : "Delay not condonable owing to negligence and lack of due care. Section 129A(2) of the Customs Act clearly enjoins that it is the Collector of Customs himself who has to take a decision for filing an appeal. In the instant case, the procedure seems to have been reversed, and the examination st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Act when the Amendment came into force, therefore, the State cannot claim any substantive right to review within a period of one year under Section 36(2) of the Central Excises and Salt Act as contended by the Department." 4. 1987 (27) E.L.T. 102 (Tribunal) Collector of Central Excise, Vadodara v. Banco Aluminium & Gujarat Aluminium, Baroda. Even if sufficient cause is shown, condonation of delay is not a matter of right. 5. 1987 (28) E.L.T. 185 (S.C.) Collector, Land Acquisition Anantnag and Another v. Mst. Katiji and Others. Shri Lakshmi Kumaran has argued that this judgment does not help the appellant. The benefit is available only when the appellant is not negligent. But in the present matter, the appellant is negligent. Undoubtedly, as per the judgment of the Hon'ble Supreme Court, a liberal view has to be taken, but the facts and circumstances of the present matter do not justify taking of a liberal approach in the instant case. 6. AIR 1962 Supreme Court 361 Ramlal and Others v. Rewa Coal Fields Ltd. The Hon'ble Supreme Court had held that: "even after sufficient cause has been shown, a party is not entitled to the condonation of delay as a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntary, appeals. He has pleaded for rejection of the applications for condonation of delay. 7. Shri G.V. Naik, the learned Joint C.D.R., has again argued that there is no delay in filing of the appeals. The delay is just imaginary or may be called as a deemed delay as there had been no service of the order of the Collector. In support of his argument, he has referred to the judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition Anantnag and another v. Mst. Katiji and others, reported in 1987 (28) E.L.T. 185. The Hon'ble Supreme Court had held that: "It is common knowledge that Supreme Court has been making a justifiably liberal approach in matters instituted in the Supreme Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. As such a liberal approach is adoptable for condonation of delay in the light of following principles:- (i) Ordinarily a litigant does not stand to benefit by lodging an appeal late. (ii) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consumers in which event these consumers alone will be the persons entitled to refund otherwise it would result in their unjust enrichment." Shri Naik has argued that the respondent had passed on the duty to the consumers. If the delay in the filing of the appeal is not condoned, it will amount to undue enrichment. He has argued that Mst. Katiji's judgment is a later judgment and the later judgment of the Supreme Court has to be followed and Ramlal and others v. Rewa Coalfields Ltd. is an earlier judgment. He has again referred to the affidavits of Collector of Customs, Calcutta, dated 16th April, 1986 and 18th July, 1986 and has argued that four thousand officers are working under the Collector of Customs and he has to see their working and as such, there is no lapse on the part of the Collector and it is a fit case for condonation of delay. 8. Shri Lakshmi Kumaran has again pleaded for rejection of the applications for condonation of delay. 9. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper appreciation of the facts relevant sub-section (3) and subsection (5) of erstwhile Section 131 are reproduced below: "(3) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he other hand, Shri S. Mukhopadhyay, Collector of Customs, Calcutta, in para 4 of his affidavit has mentioned that he does not recollect that whether Shri Mahapatra had met him personally. We have perused the orders-in-appeal. Five orders were passed by the Appellate Collector of Customs on 19th March, 1981 and one order was passed on 4th December, 1981. Under the Act, there was no provision for sending a copy of the order to the Executive Collector. Undoubtedly, under the provisions of erstwhile Section 131(3) of the Customs Act, 1962, there was no limitation for reviewing the order passed under the Act. But the right to review the order extinguished on 11th October, 1982 when the amendment in the Act was made. While amending the Act, the legislature did not introduce any savings clause and as such the right of the revenue to review the order without limitation came to an automatic end on 11th October, 1982. The Tribunal has already taken the view in the case of Collector of Central Excise, Madras v. Lucas TVs Ltd., Madras reported in 1986 (24) E.L.T. 365 and had relied on an earlier judgment of the Tribunal in the case of Atma Steels Pvt. Ltd. v. C.C.E., Chandigarh reported in 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med to have been prevented by sufficient cause is also not acceptable. The revenue had filed the appeals after the decision of the Tribunal on the similar issue in favour of the revenue. We are of the opinion that it is not a sufficient cause. Accordingly, we reject the applicant's request for condonation of delay for the original as well as supplementary appeals. 11. Since we are rejecting applications for condonation of delay, six stay applications and six appeals are also dismissed and we are not going into the merits of the appeals. 12. In the result, applications for condonation of delay, stay applications and appeals are rejected. 13. [Per Sh. V.P. Gulati, Member (T)]. - While agreeing with brother Sh. Harish Chander, I would like to add that the applicant-Collector in his affidavit dated 16th April, 1986 before us, reproduced by brother Sh. Harish Chander in para 2 of his order, at Serial No. 7 of the affidavit, has stated that the period for filing the Revision Application under Section 131 expired on 1-3-1982. The appeal has been filed by him under Section 129A and the condonation of delay in filing the appeal has been sought for under Section 129A(5) of the Customs Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECR 1556-D (SC)] the Hon'ble Supreme Court held: "Not implement the law should not be vigilant, but one aspect cannot be overlooked that a departmental authority may delay the moving of the higher court for oblique motives and the public interest may suffer if such course is thrown out merely on the ground of some delay which is also explainable." No case in the light of the above submission has been made out before us. 15. In fact, the learned JCDR has made a contrary submission : From this, it would appear that no filing of the Revision application was a conscious decision and the Collector did not file any appeal awaiting the decision of the Tribunal in a similar matter. I find that while the Collector has stated that the period for filing the revision application expired on 1-3-1982, the learned JCDR in the written submissions, has pleaded that the time available for filing the revision application was available without any time limit under the superseded provisions of Section 131 (3) of the Customs Act, 1962. In the absence of any saving clause, this right of revision stood extinguished with the repeal of this section. The argument is that right to appeal became available u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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