TMI Blog1990 (5) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... in-Original dated 13-9-1984 passed by the Collector of Customs, Calcutta, which was received in the Registry on 1-3-1985. In Column 2 of the Memo of appeal (EA 3 form) the appellants had stated the date of the impugned order as September 13,1984, as amended by Corrigendum dated December 10,1984" and the date of communication of the said order in Column 3 as Original Order communicated on September 13,1984. Corrigendum amending order communicated on December 17,1984". In sub-sec. (3) of Section 129A of the Customs Act, 1962 a period of three months is provided for filing such appeal from the date on which the order sought to be appealed against is communicated to the party concerned. Admittedly the appeal was filed by the appellants after the expiry of the said period of 3 months from the date of communication of the said order-in-original dated 13-9-1984 and no application was filed for condonation of delay alongwith the aforesaid appeal by the appellants. However, in the memorandum of appeal (Statement of facts) the appellants stated as follows :- 26. However, on or about December 17, 1984 the appellants received a Corrigendum dated December 10,1984 from the Assistant Collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t page of the impugned order) served on the appellants was substituted by another preamble. It was inter alia emphasised that in the earlier proforma in the impugned order it was mentioned that the appeal against the order-in-original lies before the Appellate Collector of Customs, Calcutta within three months from the date of its receipt but in the substituted preamble it was stated that any person aggrieved by the said order may under Section 129A of the Customs Act, 1962 file an appeal before this Tribunal. In para 6 of the application in hand it was further stated that after release of the said goods sometime in the first week of December, 1984, the appellant s representative met their Solicitor who advised that an appeal against the said order dated September 13,1984 may also be filed without prejudice to the rights and contentions in the said writ application. The said matters relating to Customs proceedings and the High Court proceedings were being looked after by Shri R.S. Agarwal, the Secretary of the appellant. The said Shri R.S. Agarwal was sick during the second and third week of December, 1984, and no step could be taken for filing the appeal during this period , and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted from the date of communication of the impugned order, which according to the appellant himself is 13-9-1984 and if so counted there is a delay of about 78 or 79 days in filing the appeal for which no sufficient cause has been shown by the appellant. Elaborating on his submission he submitted that before the amendment of the Finance Act, 1980, whereby the provisions for constituting this Tribunal were made, the order passed by the Collector of Customs was appeal- able to the Appellate Collector of Customs under erstwhile Section 129 of the Customs Act, 1962 and by the Finance Act, 1980, a new Chapter XV relating to appeals was incorporated in the Customs Act, 1962 and in the said new chapter, a new Section 129A was enacted providing for the appeal before this Tribunal against the order passed by the Collector of Customs. He highlighted that a preamble to the order-in-original is appended only for the guidance of the person aggrieved, regarding the filing of the appeal, time for filing the appeal etc. and in the instant case it appears that instead of the new Preamble and the old Preamble stating that the appeal lies to the Appellate Collector under Section 129 of the Customs A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory period of limitation of three months, which expired on 14-12-1984. In a nutshell his submission was that any advice sought or received after the expiry of the statutory period of limitation for filing the appeal is of no consequence. On this premises he submitted that the application for condonation of delay is liable to be rejected and cited the case of Union of India v. Tata Yovogawa Ltd. -1988 (38) E.L.T. 739, wherein the application for condonation of delay was rejected by the Apex Court. 7. Before we consider the rival contentions raised by the parties, it may be stated at the outset that during the course of the hearing we enquired from Shri Bajoria, learned counsel for the appellants about the fate of the said Writ Petition filed in the Calcutta High Court and also as to whether any appeal was filed by the appellants before the Appellate Collector against the impugned order as mentioned in the Preamble to the impugned order and if so, whether it was filed within 3 months from the date of communication as in the instant case the corrigendum was received by the appellants on 17-12-1984 i.e. to say after the expiry of the period of three months. In reply Shri Bajoria i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediately on receipt of the impugned order on 13-9-1984 the appellant took up the matter in the Calcutta High Court for filing a Writ Petition on 21st Sept., 1984 and got the release order on the same date on certain terms and ultimately got the release of the subject goods in the first week of Dec., 1984 and their Solicitor advised that the appeal against the impugned order dated Sept. 13, 1982 may also be filed without prejudice to the rights and contentions in the said writ petition (see paragraphs 4, 5 and 6 of the application for condonation of delay). In other words according to the appellant itself its Solicitor advised it to file the appeal in the first week of Dec., 1984 that is to say within three months prescribed for filing the appeal but the appellant did not file any appeal. Needless to say that even in Civil Court when the decree is amended or corrected in respect of unsubstantial matters, the amendment of decree did not give fresh starting point of time for appeal see Ram Singh v. Rame Bai, AIR 1968 MP 220; Harvilash v. Kanhaiya Lal, AIR 1968 MP 72. For, it is not every amendment that is made in a decree which entitles a party who prefers an appeal against a decre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhowmik it may he stated that it has no force. Besides the fact that these averments that Shri R.S. Agarwal was sick during the 2nd and 3rd week of Dec., 1984 and immediately after he joined the office on or about 24-12-1984 he handed over the papers to Shri A.K. Bhowmik are vague, we note that no such ground of the alleged illness of Shri R.S. Agarwal was taken in the memo of appeal as could be seen from paras 26 and 27 (statement of facts of the memo of appeal extracted above). It is further significant to note that no affidavit of Shri R.S. Agarwal in support of the alleged illness or that he resumed the duty on or about Dec. 24, 1984 was filed. Even no record was produced to show that the said Shri R.S. Agarwal was ever on leave during the said period. In other words it is only for the first time that alleged illness of the said Shri R.S. Agarwal was taken as a ground for condonation of delay after a lapse of about five years when an objection was raised by the respondents that appeal was time-barred. In these circumstances we hold that the appellants had failed to prove the alleged illness of the said Shri R.S. Agarwal. 12. As regards the contention of the appellant that imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was material for appreciating the contention of the appellant because the position in law is quite clear that the explanation must cover the whole of the period of delay and sufficient cause has to be explained for not filing the appeal on the last date of limitation and thereafter day by day till the actual filing of the appeal. See Ramlal v. Rewa Coalfields, AIR 1962 SC 361 i. e. a litigant who is not vigilant about his rights must explain every day s delay. In other words, he will have to prove that he was diligent and will have to explain day to day delay from the last day of limitation. See B.B. Ghoshal v. Shew Kamal Singh, AIR 1984 Cal. 122; Union of India v. Vishnu Agencies, AIR 1985 Cal. 150 and that the plea of wrong advice said to have been given by a Counsel should not be an attempt to save limitation in an underhand way or a device to cover an ulterior purpose. See State of Assam v. Naresh Chandra, AIR 1983 Gau. 24. 14. In view of the above we hold that the appellant was not diligent and it failed to prove sufficient cause for delay in filing the appeal. 15. Before we part it may be stated that we have kept in mind the ratio of the case law cited at the Bar while pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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