ORDER
S.L. Peeran, Member (J)
1. In both these revenue appeals, revenue has filed the applications for condonation of delay in an identically similar words. The appellant Commissioner of Customs, Custom House, Chennai has filed both these appeals. However, the application in the case of appeal pertaining to Hyundai Motors Ltd. has been filed by the Dy. Commissioner (Review Cell) seeking condonation of delay of 189 days in preparing this appeal and the reasons given in para-I of the application is as follows:
The impugned order of the Commissioner (Appeals) was received in Custom House on 11.9.2000.
The appeal ought to have been filed on or before 10.12.2000. The reason for the delay is considerable time has been spent to trace out the original documents, since the goods under import are project cargo, the original case file containing the essential documents (viz. the Bill of Entry copies original, duplicate, triplicate) were to be traced from section like EPCG. Group 5A, Re-funds, Appeals unit, Review Unit of Custom. House, to find out the truth of the contention of the importer.
2. While in the case of MICO Industries Ltd., the Asst. Commissioner (Review Cell) has sought for condo nation of 86 days by stating as follows:
The impugned order of the Commissioner (Appeals) was received in Customs House on 15.3.2001.
The appeal ought to have been filed on or before 14.6.2001. The reason for the delay is considerable time has been spent to trace out the original documents and preparation of appeal, which is purely administrative in nature and it may be condoned please.
3. The rest of the applications is common wherein they have cited the usual judgments as cited in all similar applications being filed by the Commissioner of Customs every time when there is a delay in filing the appeal. We notice that the Commissioner of Customs has got this stereo type applications to be filed through their sub-ordinate officers as either through Dy. Commissioner (Review Cell) or Asst. Commissioner (Review cell). Hence, there was no time chart nor there was an affidavit explaining the reasons for the delay. Therefore, in the case of Hyundai Motors Ltd., the DR was directed to call for comments from the Commissioner explaining the reasons and file affidavit in the matter along with time chart, when the matter came up for consideration on 26.9.2001. DR kept taking time when it came for consideration on 19.11.2001, 24.12.2001 and 21.2.2002. In view of large number of citations cited by the respondents on the point that the reasons given which are not sufficient and in fact there is no reason at all, therefore the DR was asked to look into the case-law in the interest of revenue and counter the respondent’s points.
4. In the case of MICO Industries a similar situation arose when the matter came up on 7.12.2001 which was adjourned to 27.12.2001 to enable the Revenue to call for affidavit from the Commissioner and the time chart explaining the reasons with sufficient grounds and the matter was adjourned to 10.1.2002, 15.1.2002 and 29.1.2002, 21.2.2002. The matter was heard on 22.1.2002 at length as was heard on previous dates and reserved for orders.
5. In both the cases, DR submits the time chart which is not signed by the Commissioner nor supported by any affidavit by the Commissioner. However, for the purpose of bringing out the mariner in which the Revenue conducts the cases it is proper that the time charts on both the cases are extracted as below:
Time Chart in the case of M/s. Hyundai Motors Ltd in O-in-O and A
592/2000 dt. 6.9.2000
O-in-A Date 6.9.2000
Rcceivcd in Review cell 11.9.2000
From To Days
DA(RC) 11.09.2000 15.09.2000 4 DAYS
DOS(RC) 15.09.2000 15.09.2000 1 DAY
FO(RC) 15.09.2000 12.10.2000 28 DAYS
AC(RC) 12.10.2000 12.10.2000 1 DAY
AC(RC) 12.10.2000 13.10.2000 2 DAYS
AC(REFUNDS) 13.10.2000 13.10.2000 1 DAY
AO(REFUNDS) 13.10.2000 13.10.2000 1 DAY
DOS(REFUNDS) 13.10.2000 16.02.2001 124 DAYS
AO(RC) 16.02.2001 20.02.2001 4 DAYS
DC(RC) 20.02.2001 20.02.2001 1 DAY
DC(REFUNDS) 20.02.2001 20.02.2001 1 DAY
DOS(REFUNDS) 21.02.2001 02.04.2001 41 DAYS
DOS(RC) 02.04.2001 02.04.2001 1 DAY
EO(RC) 02.04.2001 02.04.2001 1 DAY
AO(RC) 02.04.2001 03.04.2001 2 DAYS
DC(RC) 03.04.2001 03.04.2001 1 DAY
AO(RC) 03.04.2001 17.04.2001 15 DAYS
DC(RC) 17.04.2001 17.04.2001 1 DAY
JC(RC) 17.04.2001 30.05.2001 3 DAYS
DOS(RC) 30.05.2001 31.05.2001 2 DAYS
AC(RC) 31.05.2001 31.05.211 1 DAY
AC(RC) 31.05.2001 11.06.2001 12 DAYS
COMMR 11.06.2001 19.06.2001 9 DAYS
APPEAL FILED ON 19.6.2001
The maximum delay (*) of 124 days and 41 days occurred in Refund section and not in review cell.
*For delay of 124 days of Refunds section DOS (Refunds) had explained that back file was mixed with other files and it took time to trace the back file and same was accepted by DC (Refunds)
For delay of 41 days DOS (Refunds) had stated that the file was lying with AO (Refunds).
6. The time chart furnished in the case of MICO Industries Ltd., is also reproduced herein below:
TTME CHART-FILE NO. DA24/01-REVIEW CELL
File movement Date Number of Days
0-in-A Date 14.03.2001
Received in Review Cell on 15.03.2001
O-in-A received by the Dealing
Assistant 19.03.2001 4
1. Put up the file to EO Review
Cell on 19.03.2001 NIL
2. Put up the file to AO Review
Cell by EO Review Cell on 20.03.2001 1
3. Forwarded to DA to send the NIL
note to Refunds NIL Section
and DEPB on 22.03.2001 2
4. Submitted the file along with
Corrigendum to EO NIL
Review Cell 23.03.2001 1
Saturday Office Holiday 24.03.2001 1
Sunday Office Holiday 25.03.2001 1
5. Taken the file from AO without
any markings on 02.04.2001 8
6. Submitted the file to EO NIL
Review Cell by NIL (Reminder)
DA on 02.04.2001 NIL
7. Submitted the file to AO (RC)
by EO Review cell 02.04.2001 NIL
8. Referred the file to DA by AO
Review cell to submit NIL
the file after receipt of
CC office letter on 02.04.2001 NIL
9. Submitted the file to DC by DA 04.04.2001 2
10.Submitted the file to OS (RC)
by DA for reminder as NIL
no comments received from
Group 7 28.06.2001 85**
11.Submitted to EO Review Cell
by DA Review Cell NIL
as no comments received from
Group 7 04.07.2001 6
12.Submitted to AO Review
Cell by EO Review cell 05.07.2001 1
13.Submitted to AC Review
Cell by AO Review cell on 12.07.2001 NIL
14.Submitted the file to AO
Review Cell DA on 12.07.2001 NIL
15.Forwarded the file lo AC on 12.07.2001 NIL
16.Forwarded the file lo ADC by
AC on 13.08.2001 32***
17.Received the file from
Commissioner to File appeal with NIL
COD petition on 27.08.2001 14
18.File submitted to EO Review Cell
by DA on 27.08.2001 NIL
19.Returned the file to DA Review
Cell by EO to Submit NIL
the same by 24/01 30.08.2001 3
20.Submitted the file to EO/AO
by DA on 30.08.2001 NIL
21.Forwardcd the file to AC by Ao 30.08.2001 NIL
22.Forwardcd the file to ADC along
with appeal papers NIL
with cod petition on 30.08.2001 NIL
23.Received the file from
Commissioner after singing (sic) NIL
the Appeal papers 04.09.2001 4
24.Appeal filed on 06.09.2001 2
Total Days 175*
O-in-A - Ordcr in Appeal
EO - Examining Orficer/
AO-Apprising Officer
DA - Dealing Assistant/
OS - Office Superintendent
*Delay : 81 days (Condonation petition already filed)
** The concerned case file which was sent to Refunds Section for sanctioning Refund could not be traced
***The Asst. Commissioner during the material period was holding charges of Audit, IAD – CRA, and Legal and due to pressure of work has lost sight of the file which was misplaced in her table.
7. Ld. DR was at pains to explain the delay in both the appeals and made a bold attempt to seek condonation. The contention of Ld. DR is that the file has to move from department to department and it is not so easy to clear the file by each section. The Court has to take administrative difficulties faced by the sections and condone the delay. He referred to the salient features of the principles of condonation laid down by the Apex Court in the case of Collector Anantnag v. M.S.T. Katiji CCE and the condonation given to the Commissioner of Customs Chennai to file appeal against Adani Exports and Intercontinental (India) Ltd. by Misc Order No. 186/2001 dated 10.7.2001 wherein the delay of 81 days was condoned on the ground that some clerk had gone on long leave due to intervening holidays on account of Christmas, Pongal, and Ramzan and immediately on resuming duty appeal had been made ready and filed. The Deputy Commissioner had filed the affidavit to prove that concerned clerk had kept the file with him and no other staff in charge dealt with the file. The Tribunal in view of the affidavit of Dy. Commissioner in support of the plea that concerned staff who was dealing with the file having gone on long leave was one of the reasons for the delay and on that ground condoned the delay by taking into consideration several case-law. Ld. DR pointed out that although the Tribunal took into consideration the Dy. Commissioner’s affidavit and single individual being responsible for the same, in the present case although no individual has come forward to claim the responsibility but the administrative reason has been explained by the time chart in as much the manner in which the file was placed from one section to another and hence that could be considered as one of the reason to condone the delay. It is his contention that Revenue will not gain anything by filing belated appeal and in this regard he referred to Delhi High Court judgment rendered in J. M. Ramachandra and Sons v. CEGAT wherein the reason given by the concerned party in belated filing was on account of sickness of the concerned person i.e. the partner who was dealing the papers. The Tribunal had not accepted the explanation of delay of 63 days. However, the Hon’ble High Court noticed that the partner in charge of the entire affairs was the only person to deal and handle the matter and as he was sick and bedridden and since steps were immediately taken to pursue the appeal on his recovery, the reason given was considered to be sufficient to condone the delay. Ld. DR attempted to press these rulings to seek condonation.
8. Ld. Counsel Shri S.S. Radhakrishnan opposed the prayer on the ground that in both the appeals, there is no affidavit filed by the Com-missioner along with condonation applications. The COD application is also not filed by the Commissioner and there is no direction from the Commissioner to the concerned Dy. Commissioner (Review Cell) or the Asst. Commissioner (Review Cell) to file applications for condonation of delay. The Commissioner had given authority only to file appeal and not condonation application. It is also brought to our notice that the time charts do not disclose the person who was incharge of the file and why each section had retained the file for a considerable period as can be seen from the time chart and in view of bald time chart, the callous manner in which the application has been filed without seriousness, they seek for dismissal of applications. In this regard, Ld. Counsel relied on the judgment rendered by the Apex Court in the case of UOI v. Tata Yodogawa Ltd. 1988 (38) ELT 739 (SC) : 1988 (19) ECR 569 (SC) wherein the Apex Court after noting the time chart had clearly recorded that “there was no whisper to explain what ‘legal problems in filing the special leave petition arose’. It appears to us that no attempt has been made to explain this delay. In that view of the matter we gave further opportunity to the petitioners to file additional affidavit explaining the cause, if any, for this delay. It is further stated in the rejoinder affidavit to the counter affidavit on behalf of the Respondents that ‘such delay is always beyond the control of especially in Government matters as the file has to be routed through several Sections of the Department’. We are aware of the fact that the Government being impersonal takes longer time than the private Bodies or the individuals. Even giving that latitude, there must be some way or attempt to explain the cause for such delay. As stated from the facts narrated hereinbefore there is no sufficient cause to explain the delay. Hence the application for condonation, of delay is dismissed.”
9. Ld. Counsel contends that above observation of Hon’ble Apex Court clearly applies to the facts of the present case also as there was very clear direction and opportunity being given to the Commissioner of Customs to come out with proper reasons and explain the delay in each of the department which has not been availed. The Counsel relies on the judgment rendered by this Bench in the case of CC v. Cork International (P) Ltd. 2000 (2) ECL 17 (T) : 2000 (93) ECR 169 (T) (wherein the Commissioner’s appeal was rejected without condoning the delay of 25 days on identical reasons by applying the ratio of the Apex Court judgment rendered in the case of UOI v. Tatayodogawa (supra). Further reference was drawn to the final order No. 1938 to 1939/2001 dated 20.11.2001 in the case of CC Chennai v. Mittal Ispat and Ors. 2002 (101) ECR 104 (T), wherein the tribunal dismissed the COD applications without condoning the delay of 58 days on identical reasons. The Tribunal also noted that the application had not been supported by affidavit by the Commissioner as per law and that the AC had merely stated that the delay was caused in tracing out the original documents and in preparation of appeals which is purely administrative in nature and it could be condoned. The Tribunal held the same to be not sufficient reason and explanation given was not satisfactory and that the negligence was patent on record. Further reference was drawn to the judgment of the Tribunal rendered in the case of Collector of Customs v. Wyeth Labs Ltd. wherein also in a similar application on similar cause with delay was not condoned and appeal was rejected as the delay was more than 3 months
10. We have carefully considered the submissions and have perused the applications seeking condonation of delay and the time chart and the citations referred to before us. Regretfully, we note that the Bench de-spite granting several opportunities to the Commissioner of Customs, Chennai to file proper affidavit and give sufficient reasons has not availed of the same and has not responded to the Bench direction on several letters addressed by DR in the matter. Ld. DR has relied on the time chart which is not signed by the Commissioner to file the appeal wherein there is no affidavit of Commissioner of Customs, Chennai sup-porting the COD application. We observe that similar type of COD applications have not been accepted. These type of applications are not supported by any cause for condoning the delay despite the Bench pointed out this to the Commissioner. Several COD applications which have not been accepted the Commissioner has not woken up from slumber to take steps to file the appeal in time. We are now required to see as to whether in both the appeals the Commissioner of Customs has given sufficient reasons which can be considered as one requiring indulgence of the Court to condone the delay. As noted, the Lime chart clearly indicates that files have been lying in each of the said sections for days together. It is seen that file is DOS (Refunds) as in the case of Hyundai Motors Ltd. was with them for 124 days and for 41 days and again it was lying with them for 15 days. Likewise the file has been lying in FC (RC) for 28 days and in AO (RC) for 15 days and in AC (RC) for 12 days and with the Commissioner’s office for 9 days. There is no explanation given by any of these people as to both the files were with them for so long and as to why both file could be misplaced each and every time and as why the files could not be traced out in time. There is no responsibility taken by anybody from the Commissioner’s office to say that he/she had misplaced the file due to any reasons. Therelbre, the benefit of judgment of Collector v. MST Katiji (supra) cannot be granted as therein there was a delay of only one day and there was no negligence in the matter. In the present case, so also in the case of CC Chennai v. Adani Exports Ltd. and Intercontinental (India) (supra) some clerk was on long leave and Dy. Commissioner had filed affidavit to that effect and demonstrated about the correctness of the case. Therefore the Bench condone the delay. So also in the case of Delhi High Court in the case of J.M. Ramchandra and Sons v. CEGAT (supra) found the appellant partner having fallen sick and the sickness prevented him from filing the appeal. Therefore, the delay was condoned. While in the case of CC Chennai v. Mittal Ispat Ltd. and Sharda Castings Ltd., the Tribunal noted that the Commissioner had not filed the application as per law and the negligence was patent on record and the delay of 58 days was not condoned in view of Apex Court’s ruling on identical case in not accepting the delay in the case of UOI v. Tata Yodogawa (supra) which applies in toto to the facts of this case also. The Tribunal in similar circumstances had not accepted the reasons given for condonation in the case of CC Bombay v. Wyeth Labs Ltd. . As noted in the Apex Court judgment in UOI v. Tata Yodogawa, the appellant Commissioner has not whispered to explain “what legal problems in filing the special leave petition arose” as noted by the Apex Court on which line a similar application has been filed stating that “the delay for a considerable time has been spent to trace out original documents”. However, the time chart indicates that the file has been lying in each department for such a long period without any action being taken clearly discloses the laches and negligence on the part of the Commissioner and as noted by the Hon’ble Apex Court the Officers have to be vigilant in filing the appeal within time and not to show laxity and negligence. Where such cause is shown patently and the opportunity given by the Court as in this case is not ulilized by the parties concerned, then in such case the Court is helpless and cannot extend the benefit of condoning the delay. We note that there is no genuine attempt made by anybody in the present case to come forward with proper affidavit and explanation. Therefore, we are constrained to uphold the respondents advocate plea and citations pressed by them to apply to the facts of this case. Accordingly, applying the ratio of the judgments cited by the Counsel, the applications filed by the Commissioner of Customs, Chennai to condone the delay are rejected. and as a result the appeals alongwith stay applications are also rejected.
(pronounced in open Court on 5.3.2002)