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Everett (India) Pvt. Ltd. Vs. the Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Judge
Reported in(1985)LC358Tri(Kol.)kata
AppellantEverett (India) Pvt. Ltd.
RespondentThe Collector of Customs
Excerpt:
.....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.....
Judgment:
1. M/s. Everett (India) Pvt. Ltd., 4, Govt. Place North, Calcutta-700 001 has filed 7 appeals being aggrieved from Order Nos. 594/81, 588/81, 593/81, 584/81, 604/81, 599/81 and 589/81 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 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/- 245/81 599/11 " 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 appeal on the ground that the appellant 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 by an 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 Appellate Collector of 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 made by the Appellate Collector of Customs, your applicants filed a revision application dated December 28, 1981.

(6) We received a letter No. CD (T)(Cal) A62/81/117 dated 5.8.1982 from the Assistant Registrar, Customs, Excise & Gold (Control) Appellate Tribunal stating, inter alia, that as provided by Section 131 (B)(ii) of the Customs Act, 1962 the Revision Application will be heard and disposed of by the Appellate Tribunal and the same was registered at Serial No. CD (T) (CAL) No. 62/81. The said letter also required that we should submit 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 said letter 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 hereto and is marked with letter 'C'.

(8) We received a letter dated 29.6.84 (delivered on July 3, 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 the place of the aforesaid revision application and to condone delay in submission of separate appeal, 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 pleaded that 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 submission of the appeals before this Court. He has also conceded that this Court has got jurisdiction in the respect of the above 7 appeals as the same are the orders passed under Section (old) 128 of the Customs Act, 1962 and provisions of the Finance Act, 1984 for transferring the appeal to the Central Government arc not applicable in this case as the order was passed by the Appellate Collector of Customs and not by the Collector (Appeals), Customs.

3. After hearing both the sides I hold that the appellant was prevented by sufficient cause in the late submission of the appeals, since the original revision application filed before the Central Govt. was within the limitation and the aforesaid 7 appeals were filed by the appellant in Response to the Registry's requirement that 23 more appeals should have 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's knowledge when the carrier's liability was extinguished. He has referred to the 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 Everett (India) Pvt. Ltd. Vs.

Assistant Collector of Customs and Another. He has pleaded that the facts of all the 7 appeals are similar and all 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 SI. No. 13 the same has been wrongly typed as 330. He has also submitted that SI. No. 20 of the same annexure and 1st and 2nd columns show that the Survey-Order No. is 330/78 and 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 SI. 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, 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 Everett (India) Pvt. Ltd. v. Assistant Collector of Customs in Matter No. 1561 of 1981. He has also conceded that at SI. No. 13 of the annexure attached with the Order-in-appeal, there appears to be some typographical error. He has submitted that Order No. Survey-332/78 dated 22nd December, 1979 is in respect of Appeal No. 593/11 passed by the Appellate Collector of Customs.

6. After hearing both the sides and keeping in view the facts and circumstances of the case I hold that the appellant's 7 appeals are fully eovered by the Calcutta High Court judgment in Matter No. 1561 of 1981 in the case of Everett (India) Pvt. Ltd. and the facts of the appellant's eases 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 passed many order on this issue and has repeatedly followed the said Hon'ble Calcutta High Court's judgment. I, therefore, order cancellation of (he orders imposing penalities of Rs. 1993/-, Rs. 2122/-. Rs. 5386/-, Rs. 1777/-, Rs. 911/-, Rs. 4761/- & Rs. 4115/- totalling Rs. 21,065/-. In the result the said 7 appeals are accepted. The Revenue is directed to refund the penalties paid by the appellant in respect of the aforesaid 7 appeals after making necessary verification as to their payment within 4 months from the date of this order.


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