TMI Blog1988 (8) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... rom these parcels and on laboratory test at the Calcutta Customs House, the goods were found to conform to the invoices and the shipping bills. After obtaining the clearance certificate from the Customs Officer, the goods were sent for its destination. The appellants received payment through the State Bank of India from the consignee firms at Singapore and Qatar. These facts are admitted. The appellants thereafter applied for draw back refund as provided under Sections 74 and 75 of the Customs Act, 1962. They were not given any refund, but a show cause notice, dated August 14,1975, was issued by the Assistant Collector of Customs, Export Investigation Branch, Customs House, Calcutta, wherein it was alleged that the goods exported by them through the above consignments were shoddy blankets and not of mixed fabrics containing terrylene. This show cause notice was issued on the basis that the samples drawn from the original consignments which were lying in the custody of M/s. Thai Airways International Ltd., Singapore, revealed on test that the blankets were manufactured of shoddy wool having terrylene contents of 7.3 per cent maximum though as per the declarations the terrylene conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority. 3. Thereafter, the petitioners filed C.W.P. No. 1289 of 1979 praying for mashing of the order dated February 16,1976, and the orders of the Appellate Collector and the Government of India dismissing the appeal and revision, respectively, holding that it is barred by limitation. The appellants also prayed for a writ of mandamus directing the respondents to pay drawback amount of Rs. 1,09,437/- to the petitioners (appellants). 4. Learned Single Judge, who heard the writ petition was of the view that the appellate authority had no jurisdiction to entertain the appeal after the expiry of the total period of six months and that Section 14(2) of the Limitation Act could not be invoked by the appellants for calculating the period of limitation of six months. It is this view of the learned Judge which is canvassed in this letters patent appeal. 5. Section 29(2) of the Limitation Act, 1963, provides as follows :- "Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders made under the U.P. Sales Tax Act, the assessee filed appeals. On May 10,1963, when the appeals came up for hearing, the assessee was absent and consequently, the appeals were dismissed for default under Rule 68(5) of the U.P. Sales Tax Rules. Sub-rule (6) of that rule provided for setting aside such dismissal and re-admission of the appeal. On the very day when the appeals were dismissed, the assessee made two applications under sub-rule (6) of Rule 68 for setting aside the dismissal. During the pendency of those applications, sub-rule (5) of Rule 68 was declared ultra vires by the High Court and the High Court had further held that an appeal preferred against those assessment orders could not be dismissed in default but the appellate authority is bound to decide it on merits even though the appellant was absent. When the applications filed by the assessee for setting aside the ex-parte dismissal came up for hearing, the appellate authority dismissed the same on October 20,1964, in the view that Rule 68(5) had already been held to be ultra vires. Thereafter, the assessee preferred revision petitions on December 16,1964 against the order of dismissal, dated May 10,1963, befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f six months." 9. The Supreme Court was of the view that this provision expressly excludes the applicability of Sections 5 and 14 on the ground that there are three features in the scheme of the Act which unmistakably go to show that the legislature has deliberately excluded the application of those sections. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third was that the revising authority has no discretion to extend this period beyond a further period of six months, even on sufficient cause shown. Therefore, it should be taken that the view expressed is limited to the language used in that section and in view of the language used, the Court had come to the conclusion that there is a deliberate exclusion of the application of the Principles of Sections 5 and 14 of the Limitation Act. The learned Judges also were pleased to observe :- "In most cases, the discretion to extend limitation, on sufficient cause being shown for a further period of six mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, appeal or revision" restrict such an application. The principles enunciated in that provision will have to be applied. The only point, therefore, for consideration is that if there is anything in Section 128 of the Customs Act which expressly excluded the applicability of Section 14. The limitation of three months provided under the main part of Section 128 of the Customs Act is the normal provision for an appeal. Neither it is extraordinary, nor can we call it as unusually a long period so as to make it unconscionable for us to think that the time taken by a party in prosecuting the same relief in good faith in a different forum has to be excluded. Nor is there any provision in the Customs Act, which enables a party to invoke the suo motu appellate power. We should also keep it in mind that Section 10 of the U.P. Sales Tax Act relates to filing a revision petition after a regular appeal is over and not to a case of a regular appeal as provided under Section 128 of the Customs Act, which, in our opinion is more material. None of the three features, which were pointed out by the learned Judges in the Supreme Court judgment, are available in this case under Section 128 of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 12(2) of the Limitation Act, he was entitled to exclude in computing the period of limitation for filing revision, the time spent for obtaining a copy of the appellate order. After referring to the various decisions, the Supreme Court held :- "There can be no manner of doubt that the U.P. Sales Tax Act answers to the description of a special or local law. According to sub-section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for revision application. The conclusion would, therefore, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under Section 10 of the U.P. Sales Tax Act. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that without exhausting the alternative remedy of appeal, the appellants shall not be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. That contention was accepted both by this Court as also in the Supreme Court. After the disposal when the appellants filed the appeal before the Appellate Authority that appeal is now dismissed as not filed in time and the net result is the appellants did not have any decision on merits by the Appellate Authority. We are also satisfied and in fact it was not in dispute that the appellants were prosecuting diligently and bona fide the proceedings in this Court and the Supreme Court. If we now, therefore, dismiss it again holding that the Appellate Authority in not exercising its power was not liable to be interfered with, then the appellants would go without a decision on merits. It is in those circumstances the learned counsel at one stage also contended that if for any reason, we are of the view that Section 14(2) of the Limitation Act could not be invoked, we should decide the question on merits and not to dismiss the same as any such dismissal will do the appellants great injustice though ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
