1. M/s. Hindusthan Fertilizers Corporation Ltd., 3, Esplanade East, Calcutta-700 069 has filed a Revision Application to the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi, being aggrieved from Order No. 1085/80 dated 12.6.1980 passed by the Appellate Collector of Customs, Calcutta. After coming into existence of the Tribunal the said Revision Application was transferred to the Tribunal under Section 131 (B) of Customs Act, 1962 to be disposed of as an appeal.
2. A notice of hearing dated the 1st March, 1985 was sent by Regd. Post (A/D) fixing the appeal for hearing on the 26th March, 1985. Nobody had appeared on behalf of the appellants. Shri A.K. Chatterjee, J.D.R.appeared for the Respondent. In the interests of justice the appeal was adjourned. A fresh notice of hearing dated the 17th June, 1985 was sent by Regd. A/D fixing the appeal for hearing for today, the 17th July, 1985. The appeal was called for hearing. Nobody has appeared on behalf of the appellants. Shri P.C. Jain, J.D.R. has appeared on behalf of the Respondent. Shri Jain, the Learned J.D.R. has pleaded for the dismissal of the appeal for default.
3. After hearing the arguments of the Learned J.D.R. and going through the records it has been found that the appeal is hit by limitation.
There is a delay of seven months.
4. In para No. 4 of the Revision Application, the appellants have requested for condonation of delay. Para No. 4 of the Revision Application is reproduced as under: Para 4 : Immediately the alternative action was to approach your kind authority but unfortunately the Appellant Collector's order alongwith all relevant documents were misplaced. We had now traced the said documents and submitting herewith oar humble prayer to you for condonation of delay in submission of appeal to you and to consider our case as genuine refund to a national enterprise when the missing of documents was beyond our control.
5. The appellants have not been able to make out a case for condonation of delay. Keeping in view the facts and circumstances mentioned by the appellants in his prayer for condonation of delay I hold that it is not a fit case where this Court should exercise its discretion under Sub-section (5) of Section 129A of the Customs Act, 1962. In view of the earlier judgment of this Court and the Hon'ble Supreme Court's judgment in the case of State of W.B. v. Administrator of Howrah Municipality AIR 1972 S.C. 749, it was held that after the expiry of limitation the Respondent acquires substantial rights. Judicial discretion in condoning the delay has to be exercised very cautiously and in judicial manner. Para Nos. 26 & 27 from the Hon'ble Supreme Court's judgment are reproduced below: Para 26 : It is not possible to lay down precisely as to what facts or matters would constitute "sufficient cause" under Section 5 of the Limitation Act. But it may be safely stated that the delay in filing in appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps, which he could have or should have taken. Here again, what should be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case. Any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining of a particular case whether the facts and circumstances amount to "sufficient cause" or not. It is needless to emphasise that courts have to use their judicial discretion in the matter soundly in the interest of justice.
Para 27 : Mr. D. Mukherjee, learned Counsel for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be again said that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State.
6. The Hon'ble Supreme Court in the said judgment had referred to an earlier judgment of the Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. (1962) 2 SCR 762 : A1R 1962 SC 361. The extract from the said judgment is reproduced as under: In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making the appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan (1890) ILR 13 Mad. 269, Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.
7. In view of the above discussion the appeal is dismissed being hit by limitation. Since the appeal is dismissed on the point of limitation, I am not going into the merits of the appeal.