Harish Chander, Vice President
1. The Commandant Embarkation HQ. has filed an appeal being aggrieved by the order passed by the Collector of Customs (Appeals), Madras. The said appeal was received in Registry on the 4th day of Sept. 1990 and was sent per registered A.D. post by the appellants. The appellants have filed an application for condonation of delay duly supported with an affidavit sworn before an oath commissioner.
2. Shri Adish Agarwal, learned advocate has appeared on behalf of the appellants. He reiterated the contentions made in the application for condonation of delay and also has filed a date-sheet chart and has referred to the following judgments:
(1) CCE, Baroda v. Gujarat State Fertilizer Corpn. 27 days delay condoned. (2) : Collector, Land Acquisition, Anantnag v. 1988 (19) ECR 565 (SC) : Mst. Katiji and Ors. ECR C Cus 1335 SC Principles for condonation of delay laid. (3) 1989 (41) ELT 8 : Harsha Tractors Ltd. v.CC. 1991 (34) ECR 574 (SC) In 1989 (41) ELT 8 : 1991 (34) ECR 574 (SC) the Supreme Court has held that-
Having considered the order of the Customs Excise and Gold (Control) Appellate Tribunal, we are of the opinion that perhaps there have been certain amount of laches on behalf of the appellant. Taking, however, an overall view and having regard to the possibility of the condition prevailing at that point of time as urged by the counsel for the appellant before the Tribunal, in the interest of justice it will be right and proper to condone the delay in filing the Revision Application and the order of the Tribunal is accordingly set aside. The appeal is allowed. The appeal has to be heard by the Tribunal on the merits as expeditiously as possible.
Shri Agarwal, learned advocate pleaded that the appellants were prevented by sufficient cause in the late filing of the appeal. Therefore, there is no wilful intention on the part of the appellants in any case and the delay in filing of the appeal may be condoned.
3. Shri M.S. Arora, learned JDR, who has appeared on behalf of the respondent opposed the condonation of delay and pleaded that there is no sufficient cause which can justify the exercise of the discretionary powers of this Tribunal. He further pleaded that the affidavit is not supported with any evidence and as such the same is not acceptable. In support he relies on the judgment of the Tribunal in the case of Mahabir Metal Con-vertors v. CCE, Bombay . There is negligence on the part of the appellants and as such the application for condonation of delay should be rejected.
4. We have heard both the sides and have gone through the facts and circumstances of the case. During the course of argument today the appellants have filed a photo copy of the letter dated 7th July, 1990 written by the Embarkation Commandant Hq. to Heavy Alloy Penetrator Project C/o Defence Metallurgical Research Laboratory (PM Plant), Hyderabad. The said letter is reproduced below:
REJECTION OF APPEAL TOWARDS REFUND OF CUSTOM DUTY SS INDIAN FAME ARRD ON 23.11.1988-B/L No. 553 DT 19.9.1988-B/E NO C 997 DT. 25.11.1988
1. Please refer to your letter No. HAPP/P & C/071 and 7903-401/89-120 dt. 3.7.1989.
2. Our appeal No. 565/294/88RsA/CUS dated 31.7.1989 has been rejected by the Collector of Customs (Appeals) vide order No. C3/1635/89 dated 26.3.1990. The following documents are forwarded herewith to enable you to take further action with Customs, Excise and Gold (Control) Appellate Tribunal, if required:
(a) Order-in-Appeal No. C3/1635/89 dt. 26.3.1990
(b) Copy of Form C.A. 3
(c) Order (Original) No. S25/E 214/1989 dt. 5.5.1989
(d) Invoice No. 00208 dt. 9.9.1988
(e) Triplicate copy of B/E No. C 997 dt. 25.11.1988.
3. It may please be noted that though the time limit for lodging the appeal is three months, a condonation period of further three months is allowed by the Appellate Tribunal. You are requested to ask for condonation at the time of filing the appeal.
4. The delay in sending the documents is due to late receipt of the same from Customs and is regretted.
In the application for condonation of delay the ground of the appellant in para No. 12 is that the delay had occurred due to mistaken legal advise. The appellant has not filed any evidence to the effect whether they had taken any legal advise or not. The Hon’ble Supreme Court in the case of Ram Lal and Ors. v. Rewa Coalfields Ltd. has held that after the expiry of limitation the appellant has to explain each and every day’s delay. Para 15 of the said judgment is reproduced below:
15. It appears that the provisions of Section 5 in the present Limitation Act are substantially the same as those in Section 5(b) and Section 5, paragraph 2 of the Limitation Acts of 1871 and 1877 respectively. Section 5A which was added to the Limitation Act of 1877 by the amending Act VI of 1892 dealt with the topic covered by the explanation to Section 5 in the present Act. The explanation provides, inter alia, that the fact that the appellant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of Section 5 The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause, and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not. In the cases to which the explanation applies it may be easy for the Court to decide that the discretion should be exercised in favour of the party and delay should be condoned. Even so, the matter is still one of discretion. Under Section 5A of the Act of 1877, however, if the corresponding facts had been proved under the said section there appears to have been no discretion left in the Court because the said section provided inter alia, that whenever it was shown to the satisfaction of the Court that an appeal was presented after an expiration of the period of the limitation prescribed owing to the appellant having been misled by an order, practice or judgment of the High Court of the Presidency, Province or District, such appeal or application, if otherwise in accordance with law, shall for all purposes be deemed to have been presented within the period of limitation prescribed therefor. That, however, is a distinction which is not relevant in the present appeal.
In the case of State of W.B. v. Administrator, Howrah Municipality and Ors. the Supreme Court has held that the mere fact that the appellant is Government no superior treatment should be given. Para 27 of the said judgment is reproduced below:
Mr. D. Mukherji, learned Counsel for the first respondent is certainly well-founded in his contention that the expression ‘sufficient cause’ cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section S of the Limitation Act should also be available to the State.
5. We have perused the supporting evidence filed during the course of hearing. The impugned order was received by the appellant on 19th April, 1990 and in terms of provisions of Sub-section (3) of Section 129A of the Customs Act, 1962. An appeal was to be filed within three months from the date of receipt of the impugned order and as such the due date for filing of the appeal was 19th July 1990 where the appellant has filed before this Tribunal on 4th Sept. 1990. Thus there is a delay of 47 days. There is no evidence as to the mistaken legal advice even in the letter which is dated 2.8.1990 written by the appellant to the Embarkation Commandant. There is no mention of the name of the advocate from whom they had taken advice. The Bench had enquired from Shri Agarwal whether any fee was paid in this regard. To this he has also stated that there is no information in this regard. There is complete negligence on the part of the appellant. The judgments cited by the learned advocate do not help him as the facts and circumstances in those cases are different. In view of our above observations, we feel that it is not a fit case where the Tribunal should exercise its discretion in terms of Sub-section (5) of Section 129A. The application for condonation of delay is rejected.
6. Since we have rejected the application for condonation of delay, the appeal is also dismissed being hit by limitation and we are not going into the merits of the case.
Pronounced in the open Court.