TMI Blog2001 (9) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... view that there was discrepancy in the description of the goods and the same was not complete. The cassettes were of professional grade and consequentially more expensive. Investigation into the matter was carried out and the petitioner was asked to state whether the cassettes were VHS, Betacam, etc. and also to indicate the width of the same. Petitioner submitted that the video cassettes were of VHS type and the width of each cassettes was 12.50 mm and of 180 minutes duration. The Customs Authorities did not accept petitioner's stand and the articles were seized under a reasonable belief that those were liable for confiscation under Section 111(d) of the Act. Petitioner requested the Commissioner of Customs, Custom House, Madras for waiver of show cause notice and prayed for a personal hearing in the matter. Accordingly personal hearing was granted. Petitioner's stand was that no specific licence was required for import of blank video cassettes. However, rejecting the submissions and contentions of the petitioner, the Commissioner passed an order on holding that the import of goods in question is restricted as they are consumer goods and the goods are permitted to be imported onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the writ petition is therefore not maintainable. According to him, dismissal of the application for condonation of delay is really an order in terms of Section 129B of the Act and therefore the order can only be assailed in an appeal to the Supreme Court. Strong reliance is placed on the decision of the Apex Court in Mela Ram and Sons v. Commissioner of Income-tax [(1956) 29 ITR 607 (SC)]. Additionally, it is submitted that the Tribunal on facts has come to hold that there was no justifiable reason to condone the delay. This is essentially a finding of fact arrived at by taking into consideration relevant materials and while exercising jurisdiction under Article 226 of the Constitution it is not permissible to hold the order to be illegal. Responding to the challenge regarding maintainability, learned Counsel for the petitioner submitted that the provisions, which were under consideration in Mela Ram's case (supra), are entirely different and the decision has no application to the facts of the case. It is also submitted that the rule relating to exhaustion of alternative remedy is not invariable in nature and in an appropriate case the Court can interfere. It is also submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed Fifty thousand rupees. Every appeal against1A any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984 before the Appellate Tribunal and any matter arising out of or connected with such appeal and which is so pending shall stand transferred on such commencement to the Central Government and the Central Government shall deal with such appeal or matter under section 129DD as if such appeal or matter were an application or a matter arising out of an application made to it under that section. xxx xxx xxx xxx xxx xxx xxx xxx xxx Every appeal29(3) under this section shall be filed within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment." Sections of the I.T. Act, so far as relevant, read as follows : "Section 30(2) - The appeal shall ordinarily be presented within thirty days of the payment of the tax deducted under sub-section (3A), (3B) or (3C) of section 18 or of receipt of the notice of demand relating to the assessment or penalty objected to or of the order in writing notifying the amount of total income on which the determination under sub-section (5) of section 23 was based and the apportionment thereof between the several partners or of the loss computed under section 24 or of the intimation of the refusal to pass an order under sub-section (1) of section 25A, or to register a firm under section 26A or of the date of the refusal to make a fresh assessment und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide that the person is or is not liable to make the deduction and in the latter case direct the refund of the sum paid under sub-section (6) of section 18; Provided that the Appellate Assistant Commissioner shall not enhance an assessment or a penalty unless the appellant has had a reasonable opportunity of showing cause against such enhancement; Provided further that at the hearing of any appeal against an order of an Income-tax Officer, the Income-tax Officer shall have the right to be heard either in person or by a representative. 33(2A) The Tribunal may admit an appeal after the expiry of the sixty days referred- to in sub-sections (1) and (2), if it is satisfied that there was sufficient cause for not presenting it within that period. 33(3) - An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner, and shall, except in the case of an appeal referred to in sub-section (2), be accompanied by a fee of one hundred rupees." 6.The language of Section 31 of the I.T. Act and Section 129B are contextually and conceptually same. In Mela Ram's case (supra), it was noticed by the Apex Court that there was conflict o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 30(2) and only the order that could be passed under that Section was one excusing delay and an order refusing to condone it will fall outside it and that such an order could only be made under Section 31. The Apex Court did not accept the contention and observed as follows : "We find it difficult to accede to this contention. When power is granted to an authority to be exercised at his discretion, it is necessarily implicit in the grant that he may exercise it in such manner as the circumstances might warrant. And if the Appellate Assistant Commissioner has a discretion to excuse the delay, he has also a discretion in appropriate case to decline to do so. We are therefore of the opinion that the refusal to excuse delay is an order under Section 30(2)." 8.As regards the views expressed by the Bombay High Court that an appeal which is filed beyond period of limitation is in the eye of law no appeal unless and until there is condonation of delay and that in consequence an order passed thereon cannot be held to be passed in appeal so far as to fall within Section 31. The Apex Court further observed as follows : "Now a right of appeal is a substantive right, and is a creat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure Code. On the principles laid down in these decisions, it must be held that an appeal presented out of time is an appeal, and an order dismissing it as time-barred is one passed in appeal." 9.The other question that was considered by the Apex Court is whether the order could be described as one under Section 31. It was held that the said provision was only one relating to the hearing and dismissal of appeal and if an order dismissing an appeal, as barred by limitation is one passed in appeal, it must fall within Section 31. As Section 33 confers a right of appeal against all orders passed under Section 31 it must also be appealable. Finally it was concluded that there was abundant authority for the view that Section 31 should be liberally construed to as to include not only orders passed on a consideration of the merits of the assessment but also orders which dispose of the appeal on preliminary issues such as limitation and the like. Thus in the background of what has been stated by the Apex Court in Mela Ram's case (supra) the inevitable conclusion is that an order passed by the Tribunal refusing to condone the delay is one passed in the Appellate jurisdiction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The disposal of an appeal on the ground"20. of limitation may or may not be adjudication on the merits of the appeal, depending on the particular facts and circumstances of the case and may or may not result in the merger of the decree of the trial court with the decree if any, of the Appellate Court, but there cannot be any manner of doubt that when an appeal from the ex parte decree is dismissed on the ground of limitation, the appeal is disposed of on any ground other than the ground that the appellant has withdrawn the appeal. As the dismissal of the appeal on the ground of limitation results in the disposal of the appeal on any ground other than the ground of the withdrawal of the appeal by the appellant, the Explanation is attracted, and the application for setting aside the ex parte decree becomes incompetent after the disposal of the appeal and cannot be entertained." 12.In the background of language of Section 130E, it would not be proper to hold that the order passed by the Tribunal dismissing the appeal as barred by limitation is one covered by Clause (b) of Section 130E. The order cannot be subjected to appeal before the Supreme Court. That being the position, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes - a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (It is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 15.A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his case. There is no presumption that delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 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. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. These views were highlighted by the Apex Court in State of Haryana v. Chandra Mani [1996 (1) AIR SCW 1672]. 19.We find that there is no finding recorded by the Tribunal that there was any deliberate attempt in delaying the matter or that there was culpable negligence or there was lack of bona fides. In fact, except barely saying that there was no justifiable delay, reasons for such conclusions have not been indicated. Reasons constitute heart beat of every order. If there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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