1. M/s. Evrett (India) Pvt. Ltd., 4, Govt. Place North, Calcutta-700001 has filed 7 appeals being aggrieved from Orders Nos. 594/81 588/81 593/81, 584/81, 604/81, 599/81 and 589/8l all dated 28th March, 1984.
The aforesaid 7 appeals were presented in the Registry on the 12th July, 1984. In column 3 of the Memorandum of Appeals the date of service has been mentioned as 2nd July, 1981. The appellant had filed a revision application against an order passed by the learned Appellate Collector of Customs disposing of 24 appeals vide Order No. 580-581, 583-604/1981 dated 28th March, 1981. After the coming into existence of the Tribunal the said revision application was transferred to the Tribunal for disposal as an appeal and the said revision application was registered with the Registry vide Appeal No. CD (T) Cal.-62/81. The Registry had intimated to the appellant that since 24 appeals were disposed of by a consolidated order by the learned Appellate Collector of Customs, the appellant should have filed 24 appeals and accordingly he should file 23 more appeals. In response to the Registry's notice the appellant has chosen to file 7 appeals the particulars of the same are as under : ----------------------------------------------------------------------------Appeal No. Appeal No. of the Order-in- Amount of Office of Appellate Original No. penalty Collector of Customs---------------------------------------------------------------------------- 240/81 594/81 Survey-331/78 Rs. 1993 241/81 588/81 314/78 Rs. 2122 242/81 593/81 332/78 Rs. 5386 243/81 584/81 328/78 Rs. 1777 244/81 604/81 301/78 Rs. 911 245/81 599/81 396/78 Rs. 4761 246/81 589/81 313/78 Rs. 4115----------------------------------------------------------------------------- The appellant has filed an application dated the 20th September, 1984 duly verified, requesting this Court to condone the delay in the late submission of the appeaj on the ground that the appellant had filed a revision application to the Central Govt. and as per preamble of the order passed by the Appellate Collector of Customs, the appellant was to file only one revision application. He has pleaded that with the creation of the Tribunal the Appeal Rules have come into force. The contents of the application for condonation of delay stated in para 1 to 14, are reproduced below : - "(1) The applicants received the above-mentioned Order-in-Original and also 23 other Orders-in-Original, as per Annexure 'A'.
(2) Being aggrieved by the said Orders-in-Original, your applicants filed separate appeals against each of them.
(3) All the 24 appeals were decided byan Order No. 580-581, 583-604/ 1981 dated 28-3-81 (received on 2nd July, 1981) made by the Appellate Collector of Customs.
(4) In the said order made by the AppellateCollectorof Customs,the following instructions, among others, were given.
(ii) Any person aggrieved by this order can prefer an application for revision to the Central Government within six months from the receipt of this order.
(5) Being aggrieved by the said order madebytheAppellateCollector of Customs, your applicants filed a revision application dated December 28, 1981.
(6) We received a letter No.CD (T)(Cal.)A62/81/117dated5-8-1982 from the Assistant Registrar, Customs, Exciseand Gold(Control), Appellate Tribunal stating, inter alia,that as providedby Section 131 (B) (ii) of the Customs Act, 1962 the RevisionApplicationwill be heard and disposed of by the AppellateTribunal and thesame was registered at SerialNo. CD(T)(Cal.) No. 62/81. Thesaid letter also required that weshouldsubmit four sets of copies of Order-in-Appeal, copies of Order-in-Original as per annexure of the revision application dated 28-12-1981.A copy of the saidletter is enclosed herewith and is marked with letter 'B'.
(7) The required documents were submitted vide our letter dated August 23, 1982 a copy of which is annexed heretoandismarked with letter 'C. (8) We received a letter dated29-6-1984 (deliveredonJuly3,1984) from the Assistant Registrar, CEGAT, Calcutta, stating,inter alia, that we should file further 23 appeals with requisites.A copy of the said letter is annexed hereto and is marked with letter 'D'.
(9) Accordingly we submitted eight separate appeals with requisites in respect of 8 Orders-in-Original and decided not to appeal any further for remaining 16 Orders-in-Original.A copy of our letter dated July 12, 1984 is annexed hereto and is marked with letter 'E'.
(10) At the material time the concerned authorities were used to entertain and decide our revision applications against an order made by the Appellate Collector of Customs in respect of more than one appeal.
(11) It will appear that the applicants being guided by the customary practice prevailing at the material time as well as by the specific instruction in the preamble of the order made by the Appellate Collector of Customs, filed only one revision application.
(12) Under the circumstances,your applicants most respectfully pray for to consider and decide the appeal as submitted vide para (9) hereinabove in place of theaforesaid revision application andto condone delay in submission of separate appeals, and for such order and further reliefs as in circumstances of the case you may deem fit.
(13) The copies of the Order-in-Original, order made by the Appellate Collector of Customs and other relevant documents have been submitted with our appeal vide para (9) hereinabove.
He has pleaded that the appellant was prevented by sufficient cause in the late submission of the appeals and the original revision application which has been transferred to the Central Govt. and was registered with this Registry vide Appeal No. CD(T)CAL.-62/81 as the amount involved was less than Rs. 10,000/-. He has pleaded that the original revision application was filed within the time prescribed under the Act and as such, was within the limitation. The present 7 appeals should also be considered to be within time. In the alternative the delay should be condoned.
2. In reply Shri A.K. Chatterjee, the learned J.D.R.has pleadedthat he had got no objection if the delay is condoned and he is fully satisfied that the appellant was prevented by sufficient cause in the late submissionof the appeals before this Court.He hasalsoconcededthatthis Court hasgot jurisdiction in respect of the above 7 appeals as the same are the orders passed under Section (old) 128of theCustomsAct, 1962and provisionsof the Finance Act, 1984 for transferring the appealto theCentralGovt.are not applicable in this case as the order was passed by the AppellateCollector of Customs and not by the Collector (Appeals), Customs.
3. After hearing both the sides I hold that the appellant was prevented by sufficient causeinthe latesubmission of the appeals. Since the original revision application filed before the CentralGovt.was withinthe limitation and the aforesaid 7 appeals were filed by the appellant in responseto the Registry's requirement that 23 more appeals shouldhave been filed. Accordingly, the delay in filing of the appeals is condoned.
4. On merits Shri K.H. Jani, the learned authorised representative of the appellant company has pleaded that shortages were recorded after discharge of the cargo from the vessel during the insurance survey for which the appellant was asked to show cause as to why penalty should not be imposed on them under Section 116 of the Customs Act, 1962 and the appellant in reply to the said show cause notice had stated that the insurance survey was held long after discharge and without the appellant'sknowledgewhen thecarrier's liability was extinguished. He has referred tothe Public Notice No. 132 and has also referred to a Calcutta High Court judgment in matter No. 1561 of 1981 delivered on 2nd February, 1983 in the case of Evrett (India) Pvt. Ltd.v. Assistant Collector of Customs and Anr. He has pleaded that the facts of all the 7 appeals are similarandall the appeals are covered by Public Notice No. 132 dated 14th December, 1973 of the Calcutta Custom House as well as the Calcutta High Court judgment cited by him. He has also stated that in respect of Appeal No. 242/81 which is in respect of Order-in-Original No. Survey-332/78 dated 22nd December, 1979, there is a typographical error in the annexure of the order passed by the Collector (Appeals). He has pleaded that by mistake at S1. No. 13 the same has been wrongly typed as 330. He has also submitted that S1. No.20 of the same annexure and 1st and 2nd columns show that the Survey-Order No. is 330/78 pertains to Collector's order-in-appeal in respect of appeal No. 600/81. He has submitted that the appeal No.593/81 allowed by the Collector (Appeals) which appears at S1. No. 13 of the annexure is in respect of Order No. 332/78. He has pleaded that in view of the Public Notice No. 132 and Calcutta High Court judgment and the earlier judgment of this Court on the same issue, the appellant's appeals should be accepted and the orders as to the imposition of penalty should be quashed.
5. In reply Shri A.K. Chatterjee, the learned J.D.R. has stated that he has got nothing to say in view of the Calcutta High Court judgment in the case of Evrett (India) Pvt. Ltd.v.Assistant Collector of Customs inMatter No. 1561 of 1981.He has also conceded that at S1. No. 13 of the annexure attached withthe order-in-appeal, there appears to be some typographical error.He has submitted that Survey-Order No. 332/78 dated22ndDecember, 1979 is in respect of Appeal No. 593/81 passed by the Appellate Collector of Customs.
6. After hearing both the sides and keeping in viewthefacts and circumstances of the case I hold that the appellant's 7 appeals are fully covered by the Calcutta High Court judgment in Matter No. 1561of 1981 in the case of Evrett (India) Pvt. Ltd. and the facts of the appellant's cases are similar. There is no reason as to why the appellant should not be given the benefit of the Calcutta High Court judgment as stated above. This Court has already passedmany orders on this issue and has repeatedly followed the said Hon'bleCalcutta High Courtjudgment. I,therefore, order cancellation of the orders imposing penalties of Rs. 1,993/-,Rs. 2,122/-, Rs. 5,386/-, Rs. 1,777/-, Rs. 911/-, Rs. 4,761/- and Rs. 4,115/- totalling Rs. 21,065/.In the result the said 7 appeals are accepted. The Revenue is directedto refund the penalties paid by the appellantin respectof the aforesaid7 appealsafter making necessary verification as to their payment within4months fromthe date of this order.