1. Briefly stated, the facts of the case are apparent on record that the Respondents imported 200 kgs. Calcium Tungstate and the goods were assessed to duty under Chapter 32.04/12(1) of CTA and Countervailing duty was charged under Item 68 of Central Excise. The assessee filed the refund claim alleging that the assessment should be under Chapter 28.01/58 but the Assistant Collector of Customs (Refund Department) rejected the claim of the assessee as unsubstantiated. On appeal, the Collector of Customs (Appeals), Bombay decided the case ordering classification under Chapter 28.01/58 CTA.2. Aggrieved by the said Order passed by the Collector of Customs (Appeals), Bombay, the Department filed an appeal before the Tribunal which was received in the Office on 19-7-1984. In this apppeal an application for condonation of delay has also been filed. The reasons mentioned for condonation of delay are that the Appellate's i.e.
Collector of Customs (Appeals) Order is not correct in law and on facts. The appeal could not be filed in time as the order was under study and also required consultation with the Deputy Chief Chemist and this caused the delay in filing the appeal.
4. We have heard Shri A.S. Sundar Rajan, JDR for the Department and Shri R.G. Sheikh, Advocate for the Respondents and gone through the record.
5. As per own admission of the appellant, the order appealed against was communicated on 25-7-1983 and the time limit for 3 months for filing the appeal had expired on 24-10-1983. But the appeal was received in the Office of this Tribunal on 9-7-1984, that is, there is a delay of about 9 months in filing this appeal.
6. Regarding the condonation of delay, the legal proposition is that litigants should act with due diligence and care and sufficient cause has to be shown by the parties seeking condonation of delay. Even if sufficient cause has been shown, the party is not entitled to condonation of delay as a matter of right. The proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court. If sufficient cause is not proved, nothing further has to be done. The application for condoning has to be dismissed on that ground alone. If sufficient cause is shown, the court has to enquire whether in its discretion it should condone the delay.
Delay of each day has to be explained satisfactorily by the party. The Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. (reported in AIR 1962 Supreme Court 361) held that the proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court.
7. Keeping in view this legal proposition, we have to see whether in the present case the Department, i.e. appellant has been able to show sufficient cause for condonation of the delay of 9 months and that this delay of 9 months has been satisfactorily explained. Two reasons have been given by the appellant seeking condonation of the delay - one ground is that judgment was under study and the other was that the report of the Deputy Chief Chemist was to be obtained. On both these points, the appellant failed to satisfy us that there is sufficient gound for condonation of delay and that the delay has been satisfactorily explained. The learned Departmental Representative could not point out as to how the report of the Chief Chemist was required at the time when the matter has already been decided even the appellate stage. The department has not given any detail as to how this much time was taken for the study of the judgment which was communicated to the department as far back as 25-7-1983. The delay of 9 months shows that the departmental authorities were negligent and careless in not pursuing the matter promptly which has resulted in delay in filing this appeal. For want of any sufficient cause and for not explaining the delay of about 9 months, we are hereby rejecting this application for condonation of delay and on this account the appeal also fails and the same is hereby rejected as barred by time.