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Heilgers Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1984)(17)ELT548Tri(Kol.)kata
AppellantHeilgers Ltd.
RespondentCollector of Customs
Excerpt:
.....appellant has preferred an appeal under section 129a of customs act, 1962 against an order of the learned collector (appeals) dated 30th july, 1983 being order no. cal-cus-1501/83 affirming the original order dated 24th may, 1982 hearing no, 413/77 made by the deputy collector of customs, calcutta under section 116 of the customs act, 1962 imposing a penalty of rs. 20,913.2. the said appellate order was communicated to the appellant on 19th september, 1983.3. the said proceeding arose in connection with the cargo carried by the sea going vessel m.v. "golden land" belonging to messrs guan guan shipping (pvt.) limited of singapore. the appellant acted as the steamer agent for the port of calcutta in respect of the said vessel.4. it may be stated in this connection that one of the.....
Judgment:
1. M/s. Heilgers Ltd., 1, India Exchange Place, Calcutta-700001 had presented six appeals in the Registry on the 30th January, 1984. The particulars of the same are as under:----------------------------------------------------------------------Appeal No. Date of Communication Date of filing of the order of appeal6. CD(CAL) 12/84 9-7-82 30-1-84--------------------------------------------------------------------- Six stay petitions arising out of all the aforesaid six appeals have also been filed. The appellant has filed six applications for condonation of delay in the filing of the appeals. The above six stay petitions were posted for hearing for the 10th April '84. Before the commencement of the hearing for stay petitions we had brought it to the notice of the learned counsels for the appellants as well as the learned Senior Departmental Representative that the stay petitions cannot be heard without passing an appropriate order in respect of the appellant's applications for condonation of delay and both the parties have agreed that the applications for condonation of delay should be heard first and then the stay petitions shall be disposed of. Shri P.K.Ghosh the learned advocate for the appellant requested that the stay petitions are to be represented by his learned senior Shri Ajit Roy Mukherjee, Barrister and requested that this may be taken up on the 11th April '84 instead of 10th April '84. Accordingly, we had adjourned the above stay petitions to the 11th April '84. Shri Ajit Roy Mukherjee, the learned barrister along with Shri P.K. Ghosh and Shri P.K. Mukherjee, Advocates have appeared on behalf of the appellant.

Shri Ajit Roy Mukherjee, the learned barrister has pleaded that all the six appeals are against the orders passed by the Collector (Appeals) and were presented in the Registry on the 30th January, '84. He has pleaded that all the six appeals were filed after the period of limitation as provided under Section 129-A(3) of the Customs Act, 1962.

As per provisions of Sub-section 3, the period of limitation for the filing of appeal from order passed by the Collector (Appeals) is three months from the date of communication of the order. He has pleaded that the appellant could not file the appeals before this court within the prescribed period of limitation as the appellant was prevented by sufficient cause in not filing the appeals within the stipulated period and has pleaded that this court should exercise its discretion under Section 129-A(5) of the Customs Act, 1962 and the delay should be condoned. He has reiterated the contents of his application for condonation of delay. The grounds for condonation of delay in all the six applications are similar and grounds for condonation of delay in Appeal No. CD(CAL) 14/84 are reproduced as under :- "J. The appellant has preferred an appeal under Section 129A of Customs Act, 1962 against an order of the learned Collector (Appeals) dated 30th July, 1983 being order No. Cal-Cus-1501/83 affirming the original order dated 24th May, 1982 hearing No, 413/77 made by the Deputy Collector of Customs, Calcutta under Section 116 of the Customs Act, 1962 imposing a penalty of Rs. 20,913.

2. The said appellate order was communicated to the appellant on 19th September, 1983.

3. The said proceeding arose in connection with the cargo carried by the sea going vessel M.V. "GOLDEN LAND" belonging to Messrs Guan Guan Shipping (Pvt.) Limited of Singapore. The appellant acted as the Steamer Agent for the Port of Calcutta in respect of the said vessel.

4. It may be stated in this connection that one of the important questions involved in the said order of the learned Collector (Appeals) is as to whether Section 116 of the Customs Act, 1962 is applicable to "Nepal Cargo" that is to say the cargo shipped from a foreign country to a consignee in Nepal. There is already a Judgment of the Division Bench of the Hon'ble High Court at Calcutta in Birendra Bahadur Pandey v. Gramophone Company Limited and Ors. which was delivered by the Hon'ble Mr. Justice Sabyasachi Mukharji and the Hon'ble Mr. Justice Subhas Chandra Sen on 9th ands 10th February, 1983 holding inter alia that Nepal being a landlocked country not having a port of its own and having regard to the provision of the Indo-Nepal Treaty, such cargo cannot be regarded as cargo meant for importation into India and as such, the Customs Act, 1962 was not applicable to the same. Another important point involved in the matter is as to whether Section 116 of the Customs Act, 1962 which deals with dutiable cargo is at all applicable to goods, which, if landed would not have been chargeable to duty.

5. In a large number of Writ Petitions made by the appellant in the Hon'ble High Court at Calcutta and in a large number of such writ petitions made by other parties, identical questions of law were taken before the Hon'ble High Court at Calcutta. The Hon'ble High Court was pleased to issue rule nisi and to make interim order for stay of realisation of penalty in such matters. The said rules are still pending.

6. In view of the pendency of such a large number of Matters in the High Court involving identical questions of law and particularly in view of the Judgment of the Division Bench of the Hon'ble High Court at Calcutta which is in favour of the appellant herein, the appellant was advised to move an application under Article 226 of the Constitution of India challenging the said appellate Order of the learned Collector (Appeals).

7. Accordingly, on 11th January, 1984 an application under Article 226 of the Constitution was moved by the appellant before the Hon'ble Mr.

Justice P.C. Barooah with notice to the Union of India and to the Collector (Appeals) and the Deputy Collector of Customs. The application was opposed by the said respondent mainly on the ground that after the Constitution of the learned Appellate Tribunal the Appellant should have availed of the statutory remedy by preferring an appeal to this learned Tribunal against the said order of the Collector (Appeals). By an order dated 11th January, 1984 the Hon'ble- Mr.

Justice P.C. Barooah was pleased to uphold the preliminary objections of the respondents and to make the following order, inter alia : "An Appellate Tribunal has been set up to hear appeals from the orders passed by the Collector (Appeals)-The petitioner can urge the points raised before the Appellate Tribunal either at New Delhi or in Calcutta. Under the circumstances I dismiss these applications.

If thereby any delay in preferring the appeals or if any application is made by the petitioner for staying the penalty pending the disposal of the appeal, the appropriate Appellate Tribunal either at New Delhi or Calcutta will consider the petitioners application sympathetically provided such applications are made and appeals preferred within 3 weeks from date." A true copy of the said order of his Lordship is annexed hereto and marked with the letter "A".

8. The appellant has accordingly preferred an appeal and in connection, with the said appeal is making this application for condonation of delay in preferring the said appeal and for dispensing with the requirement of prior deposit of the amount of penalty.

9. The appellant submits that the appellant has been pursuing bona fide and in good faith the aforesaid proceedings under Article 226 of the Constitution the on the basis of legal advice received by them and in view of the fact that a large number of writ petitions are already pending covering the said point, the appellant had reasons to believe that the said application under Article 226 of the Constitution would be the proper remedy against the said order of the learned Collector (Appeals) and as such, the appellant did not prefer the appeal before this learned Tribunal within the prescribed period. It is submitted that the said delay in preferring the appeal may be condoned.

10. The appellant submits that there is a substantial questions to be decided in appeal and there is a reasonable chance of the appeal being allowed. In particular it may be pointed out that the point taken in the appeal is covered by the said judgment of the Division Bench of the Hon'ble High Court at Calcutta and the contention of the appellant in the appeal are fully supported by the said decision of the Division Bench of the Hon'ble High Court at Calcutta. As such the appeal can by no means be regarded as a frivolous one. In any event there will be no difficulty in recovering the amount of penalty in the event the appeal fails. In the circumstances the requirement of prior deposit of penalty if insisted upon will cause undue hardship to the appellant.

11. Unless the delay in preferring the appeal is condoned and the requirement for prior deposit of the penalty is dispensed with the appellants would suffer irreparable loss and injury, and the appellants will be unable to avail of the statutory remedy by way of an appeal.

12. This is a bona fide application made in the interest of justice. He has pleaded that the appellant had filed writ petitions with a bona fide belief that the Hon'ble High Court at Calcutta has a very large number of such writ petitions made by other parties where the identical questions of law were involved and the Hon'ble High Court at Calcutta was pleased to issue rule nisi to make an interim order for stay of realisation of penalty in such matters. He has pleaded that the appellant had filed a writ petition in the Hon'ble High Court on the 11th January'84 and the Hon'ble High Court had passed the order which is annexure A of the appellant's application for condonation of delay.

The same is reproduced as under : (1) Matter No. of 1984 in the Matter of Heilgers Limited ''.Collector of Appeals, Calcutta and Ors. (Penalty of Rs. 38,588).

(2) Matter No. of 1984 Heilgers Ltd. v. Appellate Collector of Customs, Calcutta and Ors. (Penalty of Rs. 6,540).

(3) Matter No. of 1984 Heilgers Ltd. v. Collector of Appeals.

Calcutta and Ors. (Penalty of Rs. 19,295).

(4) Matter No. of 1984 Heilgers Ltd. v. Collector of Appeals, Calcutta and Ors. (Penalty of Rs. 20,913).

(5) Matter No. of 1984 Heilgers Ltd. v. Collector of Appeals, Calcutta & Ors, (Penealty of Rs. 28,945).

Mr. Ajit Roy Mukherjee with Mr. P.K. Ghosh moves each application ard files a petition in each matter.

He makes his submissions and prays for a Rule in each matter. Mr.

Bhaskar Gupta with Mr. P.K. Ghosh for the respondents in each matter opposes and makes his submissions.

The Court : In those applications the petitioner is seeking to Chatterjee reports orders passed by the Collector (Appeals) dismissing the appeals preferred by the petitioner against orders passed by the Deputy Collector of Customs, Calcutta.

Mr, Ajit Roy Mukherjee appearing on behalf of the petitioner submits the Collector (Appeals) is erred inter alia, in holding that the provision of Section 116 of the Customs Act, 1962 was applicable to the cargo which involves the subject-matter of these writ petitions.

According to Mr. Roy Mukherjee these cases clearly come within Section 117 of the aforesaid Act. Mr. Roy Mukherjee further submits that as these applications raise a question of jurisdiction, High Court is proper forum to decide the question.

An Appellate Tribunal has been set up to hear appeals from the orders passed by the Collector (Appeals). The petitioner can urge the points raised before the Appellate Tribunal either at New Delhi or in Calcutta. Under the circumstances I dismiss these applications.

If thereby any delay in preferring the appeals or if any application is made by the petitioner for staying the penalty pending the disposal at the appeals. The appropriate Appellate Tribunal either at New Delhi or Calcutta will consider the petitioner's application sympathetically provided such application are made and appeals preferred within 3 weeks from date." All parties including the Appellate Tribunal to act on a signed copy minutes of this order subject to the usual undertaking.

The learned counsel for the appellant has pleaded that all the writs were decided on the 11th January, 1984 and the appellant was advised by the Hon'ble High Court to file appeals before the Customs, Excise & Gold (Control) Appellate Tribunal either in New Delhi or in Calcutta within 3 weeks from the 11 th January '84. Accordingly, the appellant had filed the appeals on the 30th January, 1984 in compliance to the orders passed by the Hon'ble High Court. He has pleaded that the period of limitation provided under Section 129-A(3) of the Customs Act, 1962 is not applicable and has pleaded for limitation as provided under Limitation Act, 1984. The learned counsel for the appellant has also pleaded that the appellant's limitation period is three years and has also referred to Article 100 of the Limitation Act, 1963. He has also referred to judgment of the Hon'ble Calcutta High Court in the case of Scindia Steam Navigation Co. Ltd. v. Joint Secretary, Govt. of India reported in part I dt. 9th August, 1982, 1982 Eastern Law Reports, 93 wherein the Hon'ble High Court had held that the delay is certainly a very relevant factor where the Court deals with the Writ of Mandamus.

But, delay in the case of prohibition is not so fatal unless it can be shown that by the delay respondent has suffered certain wrong, as such which disentitles the petitioner to seek any relief. He has pleaded that in the case of Scindia Steam Navigation Co. Ltd., the petitioner was carrying on as ship owners and carriers of goods by sea and Deputy Collector of Customs had imposed penalty on the petitioner for short-landing. The petitioner has prefered an appeal against the said order of penalty before the Appellate Collector of Customs who confirmed the previous order. The petitioner thereupon moved the Central Govt. which rejected it. Thereafter, the petitioner moved the High Court under Article 226 of the Constitution challenging the order passed by the authority. He has pleaded that in this case, the Hon'ble High Court has accepted the plea of the appellants. He had also referred to judgment of the Hon'ble Supreme Court reported in AIR 1963, S.C. 1760 where the Hon'ble Supreme Court had given its advisory opinion but the book was not produced before us. He has pleaded that in case the appellant's plea as to the non-applicability of the limitation period as provided under Section 129-A(3) is not accepted, his alternative plea is that the delay may be condoned keeping in view the provisions of Section 14 and Section 5 of the Limitation Act, 1963. He has pleaded that the appellant had all along been diligent and had filed the writs bonafidely in the High Court and the delay in filing of appeals is not much especially in the five appeals except appeal No.12/84. He has submitted that if the appellant's application for condonation of delay are not considered, it will be a case of great injustice. He has pleaded for condonation of delay.

2. Shri A.K. Saha, the learned Senior Departmental Representative has opposed the condonation of delay and has pleaded that the filing of writ proceedings in the High Court and the time taken there is not sufikient cause and has pleaded that the appellants' applications for condonation of delay should be dismissed.

3. After hearing both the sides and going through the facts and circumstances of the case, we feel that the bonafide of the appellant should not be doubted. We very respectfully follow the observation of Hon'ble Mr. Justice P.C. Barooah of the High Court at Calcutta. While passing the order His Lordship has observed that this court should sympathetically consider the appellant's applications for condonation of delay. During the course of arguments, we had brought to the notice of learned barrister Shri Ajit Roy Mukherjee that it is a settled law that the appellant is to explain each and every day's delay in the late filing of the appeal. We had also asked the learned counsel for the appellant as to the date on which he has accepted the briefs for the filing of the writ petition. The learned barrister stated before us he did not exactly remember the dates but all he could say that the appellant was busy in preparation of filing of the writ petition and these were filed on or about 10th or 11 th January'84. Section 14 of the Limitation Act, 1963 deals as to the exclusion of time of proceeding bonafide in court without jurisdiction. Section 5 of the Limitation Act empowers the court to admit an appeal or application after the expiry of limitation period. The same is reproduced as under :-- "Section 5.-Extension of prescribed period in certain cases-^-Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation.-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section." We do not accept the arguments of the learned barrister that this court is governed by the provisions of the Limitation Act. 1963. Customs, Excise and Gold (Control) Appellate Tribunal is a creation of statute that is Customs Act, 1962, Central Excises and Salt Act, 1944 and the Gold Control Act, 1968. The period of limitation as provided in the three Acts for preferring of appeals, is applicable. All the six appeals are under the Customs Act and as such, all the six appeals should have been filed within the period prescribed under the Customs Act, 1962. However, we hold that the appellant was bonafidely preparing the writ petition for filing in the High Court and the time taken in the preparation of writ petitions and time taken in the High Court is sufficient cause for late submission of the appeals. Accordingly, we hold that the appellant was prevented by sufficient cause for the late submission of the appeals and as such, considering the facts and circumstances of these matters, we condone the delay in the filing of the six appeals.

We are condoning this delay in view of the observation and wishes of the Hon'ble High Court and further observe that this order shall not be a precedent in other cases.


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