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Hong Kong Island Shipping Co. Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Judge
Reported in(1985)LC115Tri(Mum.)bai
AppellantHong Kong Island Shipping Co. Ltd.
RespondentCollector of Customs
Excerpt:
.....and in the said circumstances the board was not justified in rejecting their appeal as barred by time. shri rana contended that before the board, the appellants have filed an affidavit sworn to by one janardhan b. patankar, a managing clerk in the employ of m/s mulla and mulla. the said clerk in his affidavit has explained the delay for not preferring an appeal within the prescribed period. it was urged by shri rana that the affidavit satisfactorily established that the appellants had sufficient cause for not preferring an appeal within the prescribed period. shri rana contended that there was n(c) counter affidavit filed on behalf of the department. in the absence of a counter affidavit the board ought to have relied upon the statements made in the affidavit and condoned the delay. it.....
Judgment:
1. The Revision Application filed under Section 131 of the Customs, Act 1962 (unarnended) against the Order No. 1252A-1257A/1980 dated June, 1980 passed by the Central Board of Excise it Customs statutorily stood transferred to the Tribunal for being heard as a appeal before it.

2. The appellants M/s. Hong Kong Island Shipping Co. Ltd. and M/s.

Hongkong Pacific Shipping Co. filed two appeals before the Central Board of Excise & Customs against the order-in- original bearing No.S/14-4.749/74 Pint dated 8.10.1976 passed by the Collector of Customs (Preventive), Bombay by which the Collector directed confiscation of their vessel 'Apli Chau' but allowed redemption on payment of a fine of Rs. 50,00,000/- and also confiscated the manifested goods but allowed redemption on payment of a fine of Rs, 20,00,000/- and imposed a penalty of Rs. 10,00,000/- on the owners of the vessel viz. Hong Kong Pacific Shipping Co. and a penalty of Rs. 25,00,000/- on M/s. Hong Kong Island Shipping Co. Ltd. Besides, the Collector also imposed a penalty of Rs. 30,00,000/- on the Master, Rs. 20,00,000/- on the Chief Officer and Rs. 5.00,000/- each on the 2nd Officer and the 3rd Officer. Being aggrieved by the order of the learned Collector, the Master, the Chief Officer, the 2nd Offcer, the 3rd Officer and the present appellants preferred 6 different appeals before the Central Board of Excise & Customs. The Board clubbed all the appeals and passed a common order.

3. The two appellants herein filed their appeals on 3.5.1980. They also made an application for condonation of delay in filing the appeals.

Shri A.J. Rana, the learned Advocate for the appellants herein appeared before the Board for the present appellants and urged that the provisions of Section 29(2) of the Limitation Act was applicable and that the delay should be condoned as a special case. He appeared to have relied upon the judgment of the Supreme Court in the case of M/s.

Nirlon Synthetics. The Board considered the request for condonation of delay in paragraph 9 of its order. The Board held that it was not possible to accede to the request to condone the delay on the ground that under the Limitation Act, such condonation is permissible. The Board observed that the Limitation Act clearly provides for the time limits specified in the respective statutes to be adopted for computing the time limit in terms of the Schedule to the Act. In this case, therefore, the time limit laid down under Section 128 of the Customs Act, 1962 must apply. By that time limit both the appeals are time-barred. The judgment in the case of M/s. Nirlon Synthetics cited by the appellants is not at all applicable in the facts and circumstances of the case. Here, it is not disputed that the orders against which the appellants have filed the appeals were served on the appellants and that order clearly stipulates the time limit within which the appeals were required to be filed. The contention that the appellants were expecting their solicitors to do the needful and became aware of the fact that no such action had been taken only recently when the intimation for the hearing was issued to the other appellants, cannot be accepted as sufficient reason for extending the time limit even if the provisions of the Limitation Act were to apply. In the circumstances, these 2 appeals are rejected as barred by time limit laid down under Section 128 of the Customs Act, 1962." 4. During the hearing of the appeal, Shri A.J. Rana, the learned Advocate for the appellants contended that Section 29(2) of the Limitation Act, 1963 has been made applicable to the special acts and in the said circumstances the Board was not justified in rejecting their appeal as barred by time. Shri Rana contended that before the Board, the appellants have filed an affidavit sworn to by one Janardhan B. Patankar, a Managing clerk in the employ of M/s Mulla and Mulla. The said clerk in his affidavit has explained the delay for not preferring an appeal within the prescribed period. It was urged by Shri Rana that the affidavit satisfactorily established that the appellants had sufficient cause for not preferring an appeal within the prescribed period. Shri Rana contended that there was n(c) counter affidavit filed on behalf of the department. In the absence of a counter affidavit the Board ought to have relied upon the statements made in the affidavit and condoned the delay. It was also submitted by Shri Rana that the Board was considering 4 other appeals and therefore, no prejudice could have been caused to the revenue if the delay had been condoned, since the appellants herein were ready to go on with the personal hearing on the date on which the 4 other appeals were listed for personal hearing.

Shri Rana also submitted that the Board granted substantial relief by reducing the penalty in the case of the Master, the Chief Officer, as well as as the 2nd and 3rd officers. When that was so, the appellants who are the owners and managers of the vessel and who only relied upon the Master and the Chief Officer would have also been entitled to the substantial relief if their appeals were heard by the Board on merit.

Lastly, Shri Rana argued that during the hearing of the appeals, a request was made to the Board to treat their appeals as Revision Application and that the Board did not consider that request. On this ground also the order of the Board is liable to be ser aside. Finally, Shri Rana prayed that the Order of the Board may be set aside and the appeals be admitted and heard on merit.

5. Shri J.M. Jain, the learned Departmental Representative however, contended that the Order- in-original was dated 8.10.1976 and it was issued on 12.10.1976 and would have reached the appellants within a reasonable time thereafter. The appeals were filed on 3.5.1980 after a lapse of nearly 31 years. He further submitted that the Order-in-original indicated the remedy available to the appellants and the period within which they have to prefer art appeal before the Board and in the said circumstances the request now made by the appellants for setting aside the order of the Board may be rejected. Shri Jain farther pointed out that the Order-in-original was not only sent to the appellants but also to their Solicitors and as such there was no justification whatsoever for the appellants to prefer their appeals aftM a period of 3 years. Shri Jain further argued that under the un- amended provisions of Section 128, an appeal against the order parsed by a Collector of Customs shall have to be preferred within three months from the date of communication of such order. Further, the said Section enables the Board to condone the delay for a further period of 3 months if the appellants were able to satisfy the Board that they were prevented by sufficient cause from presenting the appeal within the period of three months. Shri Jain urged that having regard to provisions of Section 128, even if sufficient cause has been shown by the appellants for presenting the appeal after a period of three months, the Board has no power or jurisdiction to condone the delay exceeding six months from the date of communication of the order. As the delay in the present case is more than 31/2 years, the Board could not condone the delay, even if it was satisfied that the appellants had sufficient cause for not presenting the appeal within a period of three months from the date of communication of the Order-in-original. Shri Jain further submitted that Section 130 of the Act (unamended) did not confer any right of revision to a party. It only vests a discretion with the Board, Further, according to Shri Jain under Sub-Section 4 of Section 130 the Board is precluded from considering any revision application which was filed after the expiry of a period of one year, from the date of communication of the order. Finally, Shri Jain submitted that Section 29(2) of the Limitation Act is not applicable to the proceedings before the Board. The provisions of Limitation Act are applicable only to the proceedings before a Court of Law.

6. Having regard to the rival contentions, the only point that arises for consideration is: Whether the Board committed any error of law or the order of the Board is improper and unjust in the facts and circumstances of the case? Shri Rana did not dispute that the Order-in- original was communicated to the appellants in the month of October, 1976. He also did not dispute that the appeals were filed on 3.5.1980 after a lapse of nearly 31 years. Shti Rana did not contend that the Customs Act conferred a power on the Board to condone the delay of 3i years. Shri Rana has to concede that Revision application before the Board shall have to be filed within a period of one year from the date of communication of the order, if the order has been passed before the commencement of the Customs Act, Central Excises and Salt Act and Central Boards of Revenue (Amendment) Act. 1978 and if the period of one year for initiating revision proceedings has expired at such commencement, then, revision proceedings shall have to be initiated within a period of six months from such commencement. Shri Rana also did not dispute that Section 128 authorises the Board to condone the delay of 3 months only. Whether Shri Rana concedes the above position or not, provisions of Sections 128 and 130 are clear, explicit and unambiguous. In the said circumstances, Shri Rana cannot, make any grievance if the Board considered the appeals filed by the present appellants were barred by time under the provisions of Section 128. Non- consideration of the request under Section 130 also is of no avail to the appellants because admittedly the appeals which they requested to be treated as revision applications were Bled beyond a period of 18 months i.e. after the expiry of 31/2 years from the date of communication of the Order-in-original.

7. The only other aspect that remains for consideration is the applicability of Section 29(2) of the Limitation Act, 1963. The said Section reads as under: 29. Savings : (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (IX of 1872).

(2) Where any special or local law prescribed, 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 prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application, by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

For the purpose of this appeal, we do not propose to consider the contention raised by Shri Jain viz. that the provisions of this Section is not applicable to the proceedings before the Board and that provisions of Limitation Act are applicable only to the proceedings before the courts. For the purpose of this appeal, we proceed on the assumption that the provisions of Limitation Act including Section 29(2) are applicable to the proceedings before the Board. It is not in dispute that period of limitation prescribed for preferring an appeal under the Customs Act is different from the period prescribed in the Schedule to the Limitation Act. The effect of Section 29(2) of the Limitation Act is to make applicable the provisions contained in Sections 4 to 24 to the proceedings under special or local law, unless these provisions are expressly excluded under special or local law. It is therefore necessary to consider whether there is express exclusion of Section 5 of the Limitation Act on which Shri Rana relied for condonation of delay in preferring the appeals before the Board.

8. As has been stated earlier, Section 128 of the Customs Act (before amendment) authorises the Board to condone the delay if the delay did not exceed more than three months. It is therefore necessary to examine whether the proviso which empowers the Board to condone the delay of 3 months, amounts to the exclusion of the applicability of Section 5 of the Limitation Act expressly.

9. A similar question came up for consideration before the Supreme Court in a case Mohd. Ashfaq v. State Transport Appellate Tribunal U.P. The Supreme Court in the above case was considering the applicability of Section 5 of the Limitation Act to the proceedings under the Motor Vehicles Act which is a special Act.

This is what the Supreme Court observed in the said case: The proviso to Sub-Section (2) of Section 58 of the Motor Vehicles Act requires that an application for renewal of a permit should be made not less than 120 days before the date of expiry of the permit.

But, notwithstanding this provision, the Regional Transport Authority may, under Sub-section (3), entertain an application for renewal of a permit after the last date specified in Sub-section (2), "if the application is made not more than 15 days after said last date and is accompanied by the prescribed fee." Sub-section (3) thus vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than fifteen days. The word used in Sub-section (3) is "may" and not "shall" and the Regional Transport Authority is given a discretion to entertain an application for renewal of a permit even where it is beyond time, though not more than 15 days. It may condone the delay or it may not, depending on the circumstances of each case.

The discretion is obviously to be exercised where sufficient cause for not making the application for renewal within time is made out by the applicant. This criterion can legitimately be imported from Section 5 of the Limitation Act, 1963 which contains an allied provision for condonation of delay where an application is made beyond time. It could never have been the intention of the Legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely on the ground that the delay is of not more than 15 days. Sub-section (3) enacts a provision for condonation of delay in making an application for renewal and not a provision extending the time limit specified in the proviso to Sub-section (2) in all cases as a matter of course. If the intention of the Legislation were that in every case delay of not more than 15 days in making an application for renewal should be condoned as of course, there was no need for a separate provision in Sub-section (3), but the Legislature could have very well specified "one hundred and five days" instead of "one hundred and twenty days" in the proviso to Sub-section (2).

It is therefore clear, that Sub-section (3) of Section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time limit specified in the proviso to Sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now the question which arises is does Section 5 of the Limitation Act 1963 apply so as to empower the Regional Transport Authority for sufficient cause to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, Sub-section (2) of the Limitation Act, 1963 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was Sub-section (3). Does Sub-section (3) expressly exclude further extension of time under Section 5? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days, This clearly means (hat if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in Sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in cases where an application for renewal is delayed by more than 15 days.

From the decision of the Supreme Court referred to above, it is clear (that applicability of Section 5 of the Limitation Act is expressly excluded by the proviso to Section 128 of the Customs Act (unamended).

10. As the appeals were admittedly filed after a period of 3J years, the Board could not condone the delay having regard to the proviso to Section 128 of the Customs Act. The Board was therefore right in rejecting the appeals as barred by time.

11. The contention of Shri Rana that the Board had not properly considered the affidavit filed on behalf of the appellants, in our opinion, is not sound. The satisfaction contemplated under the proviso to Section 128 was the satisfaction of the Board and not the appellate authority. The appellate authority, however, is entitled to examine as to whether the discretion exercised by the Board is arbitrary, fanciful, capricious or improper. As has been stated earlier, the statute did not confer any power on the Board to condone the delay of a period exceeding three months and in the said circumstances, if the Board has refused to condone the delay of more' than 3 J years it cannot be said that discretion exercised by the Board is arbitrary, fanciful, capricious or improper.

12. Before parting with this appeal, it may be pointed out that the affidavit filed before the Board for condonation of delay is not only unsatisfactory in nature, but is vague. The affidavit makes it clear that M/s. Mulla and Mulla were handling the cases of the appellants.

They have entrusted the matter to one Miss M. Sen. It was stated that Miss M. Sen did not prefer an appeal due to inadvertance. This inadvertance on the part of Miss M. Sen stated to have come to the notice of the Master of Janardhan who had sworn to an affidavit. Shri Janardhan docs not himself state that he made any enquiry with Miss M.Sen and that Miss M. Sen informed to him her inadvertency. Neither Miss M. Sen nor the Master of Mr. Janardhan filed an affidavit before the Board explaining the circumstances or cause for delay. In the circumstances, if tke Board has sot placed much reliance on this document, no grievance could be made by the appellants.

13. After careful consideration of all aspects, we see no merit in this appeal and accordingly we reject the same.


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