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Angus Company Limited Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1985)(21)ELT518Tri(Kol.)kata
AppellantAngus Company Limited
RespondentCollector of Customs
Excerpt:
.....of the lawyer and it was only on 22nd march, 1983 that the appellant was in a position to file an appeal. the learned barrister has reiterated the contentions made in the application for condonation of delay. he has pleaded that there is no doubt about the bona fide of the appellant. he has further submitted that the appellant's principal resides abroad. he has submitted that substantial justice may be done. he has referred to a judgment of hon'ble supreme court in the case of state of west bengal v. the administrator, howrah municipality and ors.749. he has laid special emphasis on paras 26, 29, 30 32, 42, 44 and 45 of the said judgment. he has further pleaded that the hon'ble supreme court has held that if a party had acted in a particular manner on a wrong advice given by his legal.....
Judgment:
1. The Angus Co. Ltd., 3, Clive Row, Calcutta-!, has filed an appeal being aggrieved from Order No. Cal. Cus. 1241/82, dated 21st May, 1982 passed by the Appellate Collector of Customs, Calcutta. In Column No. 3 of the memorandum of appeal, the date of service has been mentioned as 22nd September, 1982. The said appeal was presented in the registry on the 26th March, 1983. The appeal was posted for hearing on 30th October, 1984. It was brought to the notice of Shri S.C. Ukil, the learned Barrister who has appeared on behalf of the appellant that the appeal is hit by limitation. The learned Barrister had requested for adjournment and has stated that he intended to file an application for condonation of delay as par instruction of his client. In the interests of justice, the appeal was adjourned. The appellant has filed an application for condonation of delay duly verified before the notary public on the 13th November, 1984. Shri S.C. Ukil, the learned Barrister has appeared on behalf of the appellant. He has pleaded that the appeal could not be filed within the stipulated period as the appellant could not take any decision whether they should prefer an appeal to the Central Government or to the Tribunal and this has necessitated in taking the opinion of the lawyer and it was only on 22nd March, 1983 that the appellant was in a position to file an appeal. The learned Barrister has reiterated the contentions made in the application for condonation of delay. He has pleaded that there is no doubt about the bona fide of the appellant. He has further submitted that the appellant's Principal resides abroad. He has submitted that substantial justice may be done. He has referred to a judgment of Hon'ble Supreme Court in the case of State of West Bengal v. The Administrator, Howrah Municipality and Ors.

749. He has laid special emphasis on paras 26, 29, 30 32, 42, 44 and 45 of the said judgment. He has further pleaded that the Hon'ble Supreme Court has held that if a party had acted in a particular manner on a wrong advice given by his legal Adviser, he cannot be held guilty of negligence so as to disentitle the party to plead sufficient cause under Section 5 of the Limitation Act. The learned Barrister has pleaded that the delay in filing of appeal may be condoned. Otherwise, appellant shall suffer an irreparable loss.

2. In reply, Shri A.K. Chatterjee, the learned Junior Departmental Representative has pleaded that there is no merit in the appellant's application for condonation of delay. He has referred to para no. 2 of the said application where the appellant has referred that he had referred the matter to the Advocate for opinion and the appellant had received the opinion after the High Court Puja holidays and it was opined that there was merit in the case. Thereafter, the appellant had referred the case to the Principal of the company for approval to prefer the revision application. He has referred to a judgment in the case of Titaghur Paper Mills Ltd. v Union of India reported in 1981 E.L.T. 27. The learned J.D.R. has pleaded that if the delay in filing the appeal is condoned, the substantial right of respondent will be affected. He has pleaded that the appellant's application for condonation of delay may be rejected.

3. Shri S.C. Ukil, the learned Barrister has pleaded that the appellant's application is sworn before a notary public and the same may be accepted.

4. After hearing both the sides and going through the facts and circumstances of the case, I hold that reference to the Principal abroad for seeking instruction for the filing of appeal is not a sufficient cause. The judgment of the Hon'ble Supreme Court in the case of State of West Bengal v. The Administrator, Howrah Municipality and Ors. reported in AIR 1972 S.C. 749, cited by the learned authorised representative, does not help the appellant. In the instant case, there is negligence on the part of the appellant in filing of the appeal. It is a settled law that the cause for delay which by due care and attention, the party could have avoided, cannot be a sufficient cause.

The Limitation Law ought to receive such a construction as the language in its plain meaning imports. The rule must be enforced even at the risk of hardship to a particular party. The judge cannot on equitable grounds enlarge the time allowed by law, postpone its operation, or introduce exceptions not recognised by it. It was so held by the Hon'ble Rajasthan High Court in the case of State of Rajasthan v.Rampath and Ors., reported in AIR 1972 Rajasthan 161. The Hon'ble Court had further held that there was no sufficient cause which could entitle the appellant for extension of time as all of them acted without due care and attention. The Hon'ble High Court had followed the judgments of Calcutta High Court and Privy Council reported in AIR 1933 Cal. 462 and AIR 1941 Privy Council 6 (not cited by the parties). I would also like to observe that in condoning the delay, the Court should be very cautious as the substantial rights of the other party are affected.

When the time for appealing is once passed, a very valuable right is secured to the successful litigant and the Court must therefore be fully satisfied of the justice on the ground on which the appellant seeks to obtain an extension of time for attacking the decree and thus perhaps decreeing the successful litigant of the advantages which he has attained-Karsondas v. Bui Gitngabai, 30 Bom 329 (330); Sanghni v.Gopeswar, 12 CLJ 615 (617), Dund Bahadur v. Deo Nandan 17 LJ 596; Sarat Chander v. Saraswati, 34 Cal. 126 (221); Sohan v. Abdul Hameed Khan, AIR 1976 All. 159. (Extract taken from the Limitation Act, 18th Edition by B.B. Mitra, page 58). In construing the provisions of Limitation, strict grammatical meaning of word has to be taken. Hon'ble Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. reported in AIR 1962 S.C. 361 had held that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. The judgment of Ramlal v.Rewa Coalfields Ltd. reported in AIR 1962 S.C. 361 was followed by the Hon'ble Allahabad High Court in the case of Sohan v. Abdul Hameed Khan reported in AIR 1976 AH. 159. The relevant head note from the said judgment is reproduced as under : "In dealing with an application under Section 5 for condoning delay in filing appeal beyond the prescribed period it is relevant to bear in mind two important considerations namely (1) the expiration of limitation for making appeal gives rise to a legal right in favour of the decree holder to treat the decree as binding between the parties and this legal right should not be light-heartedly disturbed and (2) if sufficient cause for excusing delay is shown the applicant is not entitled as a matter of right to condonation of delay but discretion is given to the Court to condone delay and admit appeal." The judgment cited by the learned J.D.R. does not help the respondent in any way as the same relates to the sending of appeals by post.

Keeping in view the facts and circumstances of the case, I hold that the appellant was not prevented by sufficient cause in the late filing of the appeal. The appeal is dismissed being hit by limitation. Since the appeal is dismissed on the ground of limitation, I am not going into the merits of the appeal.


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