ORDER
1. Since the condonation of delay is the issue in all the above applications relating to the same party, they are taken up together and disposed of by a common order.
2. Shri Narayanan, the learned Counsel for the petitioners, submitted that the petitioners imported steel scrap by different vessels and paid customs duty on the invoiced quantity. The steel scrap loaded in lorry/truck was weighed in the Madras Port Trust weighbridge, which issued weighment certificate showing the quantity cleared and since the quantity cleared was less than the quantity for which the petitioner had paid duty, the petitioner claimed refund of the same under the provisions of the Customs Act, 1962. The petitioner’s refund claim was rejected by the lower appellate authority under the respective impugned orders. Thereafter, the petitioners instead of preferring an appeal before this Tribunal were misled by the preamble appended to the respective impugned orders on the basis of which the petitioner preferred a revision application before the Government of India and the revisional authority viz. the Government of India went into the question of jurisdiction at considerable length as would be evident from the order passed by the Government of India and finally holding that the Government had no jurisdiction and only a statutory appeal would lie before the Tribunal, dismissed the revision applications on that ground holding that it would be open to the petitioners to approach the Tribunal for relief. The learned Counsel in the above factual background submitted that the petitioners have been vigilant to pursue the remedy without being guilty of any laches and this would be evident from the fact that the revision application was filed in all cases within a period of three months. The matter was also pending before the revisional authority for quite sometime and after the receipt-of the orders from the revisional authority, the petitioners preferred the appeal in three cases within one month and four days and in one case within one month and 11 days with prayer for condonation of delay, if any, stating that the petitioners were bona fide prosecuting their case though before a wrong forum and were evidently misled by the wording of the preamble appended to the impugned order of the Collector of Customs (Appeals), Madras. The learned Counsel further submitted apart from that, the issue relating to jurisdiction also was gone into by the revisional authority and, therefore, in the interests of justice the learned Counsel prayed that the delay may be condoned.
3. Heard Shri Subramanian, the learned DR.
4. I have considered the submissions made before me and gone through the orders passed by the authorities below including the revisional authority. For purpose of convenience I am hereunder extracting the relevant particulars of the date of the impugned order, etc.:
COD No. Date of re- Date of re- Time taken Date of re- Date of fil- Time taken
ceipt of ceipt of for filing ceipt of or- ing of ap- in filing ap-
lower R.A. by G.I. revision be- der from peal before peal before
appellate fore G.I. G.I. CEGAT. CEGAT.
order.
____________________________________________________________________________________________
Y/M/D Y/M/D
457/91 25.9.1990 20.12.1990 0.2.25 21.6.1991 25.7.1991 0.1.4
458/91 16.1.1991 4.3.1991 0.1.17 -do- 25.7.1991 0.1.4
459/91 16.1.1991 -do- 0.1.17 -do- 1.8.1991 0.1.11
121/92 25.9.1990 20.12.1990 0.2.25 -do- 25.7.1991 0.1.4
The petitioners in the appeals had claimed refund of duty mainly under Section 23 of the Customs Act, 1962.1 find it difficult to understand much less appreciate as to how the authorities have taken the view that there was no short-landing, when admittedly the manifested quantity was not actually delivered to the petitioners. The quantity delivered to the petitioner is evidenced by the weighment certificate issued by the Port Trust which is less than the quantity reflected in the invoices for which the petitioners paid customs duty under the Customs Act, 1962. The petitioners would also appear to have taken delivery of the goods in question after weighment of empty and loaded trucks from Madras Port Trust Weighbridge in the presence of the Customs examiner and the weighment particulars have also been recorded and duly certified as per the regular practice in the weighment certificate. No doubt, I also find that no short-landing certificate in form-B has been issued by the Madras Port Trust and neither the out-turn statement nor survey report would show any short-landing. The claim of the petitioners would call for examination in the context of the above factual ramifications involving legal niceties with reference to the applicability and interpretation of scope of Sections 13 and 32 of the Customs Act, 1962. Therefore, keeping the nature of the issue involved, the circumstances under which delay was occasioned in the presentation of the appeal before the Tribunal, the wording in the preamble in the impugned order of the Collector of Customs (Appeals), the bona fides on the part of the petitioners in diligently prosecuting revision applications before the revisional authority, the revisional authority being exercised over the issue of jurisdiction and passing a considered order and finally the petitioner after receipt of the order rejecting the petitioners’ claim for refund on grounds of jurisdiction, preferring appeals before the Tribunal in 3 cases within one month and 4 days and in one case within one month and 11 days and in the interests of justice, I condone the delay. The appeals stand posted for disposal on merits on 14th August, 1992 with the consent of parties.
(Pronounced in open court).