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Jalaram Trading Co. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Decided On
Reported in(1983)LC713DTri(Mum.)bai
AppellantJalaram Trading Co.
RespondentCollector of Customs
.....on 3.9.1981.the appeal was dismissed on the ground that it had been filed beyond the statutory period of limitation, contemplated by section 128 of the act. the collector (appeals) apparently thus did not go into the facts having held that the appeal merited rejection as being barred by time.2. on the appeal being taken up for hearing today, shri nitin kantawala, advocate appeared for the appellants whereas shri m.chatterhee, jdr was present for the revenue. the arguments were confined only to the point as to whether rejection of the appeal by the collector on the ground of limitation was justified or not.3. shri kantawala conceded that section 128 of the act, as it was then worded, did provide a definite period of limitation of 3 months for filing of an appeal before the collector,.....
1. This is an appeal which was originally by way of revision petition before the Central Government, and has since been received by transfer under the provisions of Section 131B of the Customs Act, 1962 (hereinafter to be referred as "the Act"). It is directed against an order passed by the Collector of Customs (Appeals) Bombay on 3.9.1981.

The appeal was dismissed on the ground that it had been filed beyond the statutory period of limitation, contemplated by Section 128 of the Act. The Collector (Appeals) apparently thus did not go into the facts having held that the appeal merited rejection as being barred by time.

2. On the appeal being taken up for hearing today, Shri Nitin Kantawala, Advocate appeared for the appellants whereas Shri M.Chatterhee, JDR was present for the Revenue. The arguments were confined only to the point as to whether rejection of the appeal by the Collector on the ground of limitation was justified or not.

3. Shri Kantawala conceded that Section 128 of the Act, as it was then worded, did provide a definite period of limitation of 3 months for filing of an appeal before the Collector, under Sub-section (1)(b), but the entire strain of his argument was to the effect that proviso to this sub-section did vest the appellate authority with descretion to allow the appeal to be presented, on sufficient cause being shown, even beyond the period of further three months, after the initial period of limitation of three months, contemplated by the section itself. He went on to build his arguments by contending that this proviso is worded in such a manner that an inbuilt power of condonation of delay, without any restriction as to point of time, has to be inferred, and urged that embargo of "three months" operated only when, after the expiry of first three months as contemplated by Sub-section (1) itself, the appellate authority exercised discretion to entertain an appeal in case the party could show good cause as to why it was presented from filing the appeal within the stipulated time. He contended that this restriction went only up to further three months and that thereafter the discretion has to be treated to be untrammelled by any type of limitation, as to point of time.

4. The learned Advocate dwelt in detail oil this line of argument and although he conceded that the appeal as filed on 28.8.1981 was beyond six months, and to be exact, it was delayed by 2 months and 18 days, after the statutory period of 3 months as provided by Section 128(1)(b) and further period of 3 months as contemplated by the proviso thereto, was concerned. He, however, pleaded that in view of the fact that the refund claim in this case was with reference to a concessional notification issued by Government of India and, thereafter, a decision of the Government of India exercising revisional jurisdiction had held that benefit of this notification, being Notification No. 29-Cus/79 dated 10.2.1979 was available to the item known as "Snap Fasteners", having treated them to be "embellishment for footwear", it was a case where a just claim of the appellants had been negatived by refusal of the Appellate Collector to entertain the appeal, on technical ground of bar of time.

5. Shri M. Chatterjee, Departmental representative, appearing for the respondent, controverted the contentions raised on behalf of the appellants, by the learned Counsel that after the extended period of 3 months as contemplated by the proviso, there was no in-built restriction and that no limitation of time could be set up against the appellants. He defended the order of the Appellate Collector by pleading that the provisions of the Statute are mandatory, and that there was no scope to entertain the appeal after the expiry of total period of 6 months, and that the order of Appellate Collector was unassailable.

6. We have given our very careful thought to the matter, particularly in view of the argument that the claim for refund was just and deserved to be allowed on facts, and that the party has been debarred from getting the relief only because of the view taken by the Appellate Collector, which was a question, according to the learned Counsel, of mere technicality. We, however, find it difficult to appreciate the line of approach adopted by the learned Counsel by saying that because the language of the proviso was not worded in negative peremptory terms, it was wrong to say that there could be no extension of time or condonation of delay, beyond further three months.

7. It is a settlea proposition of law that provisions of statute are to be interpreted strictly, in accordance with the expressed intention of legislature, and no extraneous considerations could be inducted while giving effect to the legislative intent.

8. Applying this principle to the present case, it is noteworthy that the law in the shape of Sub-section (1) of Section 128 categorically provides a period of limitation for filing of appeals, and that period is a specific period of 3 months. The only discretion allowed to the appellate authority is that in given situations when the said authority may feel satisfied that the party had, been prevented due to sufficient cause from presenting the appeal within time, it may entertain the same, but the period upto which the concerned appellate authority may do so, has been expressly limited to 3 months. It is, therefore, manifest that legislature really intended that no more indulgence beyond three months is to be allowed to any party for filing appeal beyond the statutory time of three months. By no straining of reasoning, any other intention could be imputed to the legislature, and in any case, it is not possible to spell out the inference which the learned Counsel seeks to be drawn, from the wording of the Proviso to Section 128(1) of the Act.

9. The authorities of the Hon'ble Supreme Court cited by the learned Counsel, namely, Govindlal Chaggan Lal Patel v. Union of India and Ors.

, and the Agriculture Produce Market Committee and Ors. and Lachmi Narain only enunciate the accepted principles, in relation to interpretation of Statutes, but it has been held clearly, particularly in the better authority that- if the legislative intent is expressed clearly and strongly in imperative words, that will be sufficient to hold the provisions to be mandatory. There is no doubt indication in this authority that if peremptory language is used in a negative form, then the intent has to be taken to make the provision mandatory, but it does not mean that the language always has to be so worded, in order to draw such an inference. In our view, it is the cumulative effect of the particular provision in its entirety that has to be borne in mind.

10. Even in the authority, again of Supreme Court, cited by the learned Counsel, namely, Madras Port Trust v. Hymanshu International 1979 ELT J 396, it has been clearly held that: In case of technical plea, such as that of time bar plea, taken up, the court has to decide it and if the plea is well-founded, it has to be upheld by the Court.

What their lordships of the Supreme Court observed was only that it did not behave the Government or a public authority to defeat just claims of citizens by raising such types of pleas, but as already noticed, their lordships recognised the situation that so far as courts are concerned, (which would include Tribunals and other quasi-judicial authorities), once such plea has been raised, it has to be decided, and even allowed, in case so warranted by the provisions of law.

11. Keeping in view the aforesaid principles, we are of our well-considered view that wording of Section 128, inclusive of the Proviso, does not leave scope for any doubt that the Legislature has intended to allow only grace of further three months after the statutory period of three months, on good cause being shown, and no more. We hold this view because where the Legislature intended to keep the time unlimited, for entertaining a matter beyond the time provided by law, then the wording has not been regulated or restricted by any further limit of time. We would like to bring into focus in this connection, Section 5 of the Limitation Act: Any appeal or any application..., may be admitted after the prescribed period if the appellant or the applicant satisfied the Court that he had sufficient cause for not preferring the appeal or making the application within such period....

12. This clearly suggests that wherever the Legislature intended to keep time for extension unlimited, it has been so provided, and from this the conclusion is inescapable that in the case of appeals before the Appellate Collector, the intention was to allow discretion for giving extension to the appellant only for further three months, and not beyond that.

13. In view of this, we find that the Appellate Collector was right in rejecting the appeal as barred by time. The plea that the claim deserved to be allowed on merits, cannot persuade us to hold otherwise because law, and even equity, helps only those who are vigilant, and not indolent.

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