Skip to content


Delux Food Products (P) Ltd. Vs. Collector of Customs - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1986)(23)ELT231TriDel
AppellantDelux Food Products (P) Ltd.
RespondentCollector of Customs
Excerpt:
.....of any statute a right to institute any suit of a civil nature in some court or another, a right of appeal does not exist unless it is clearly given by statute."there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. it is no answer to a suit, however frivolous the claim, that the law confers no such right to sue. a suit for maintainability requires no authority of law and it is enough that no statute bars the suit. but the position in regard to appeals is quite the opposite. the right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.that explains why the right of appeal is described as a creature of.....
Judgment:
1. This appeal is against Order-in-Appeal No. S/49-28/80E dated 27-12-80 of the Appellate Collector of Customs, Bombay, rejecting as time-barred the appeal made to him. The basic facts are that the appellants had exported a quantity of "Indian rice bran extraction" which was provisionally allowed to be exported without payment of duty.

Thereafter, a demand for export duty amounting to Rs. 62,100 under Item 21 of the Export Tariff Schedule was made, and subsequently confirmed in an order dated 4-12-78 of the Assistant Collector of Customs. An appeal against this order was filed to the Appellate Collector on 18-9-80, which, as mentioned above, was rejected by him as time-barred.

2. Appearing before us for the appellants, Shri M. Venkataraman, their learned advocate, submitted that the appellants had a clear case on merits, and that they were entitled to the refund of the abovementioned amount, which they had subsequently paid. He submitted that a number of other exporters against whom similar orders were passed by the Assistant Collector, had gone in appeal to the Appellate Collector and by an order dated 2-7-80 the Appellate Collector had held that no export duty could be recovered on such goods. It was claimed that the case of the appellants was squarely covered by the above decision.

3. As regards the rejection of their appeal as time-barred, Shri Venka-taraman submitted that at the time the revision application (which is now being heard by us as an appeal) was filed, namely in May, 1981, the Central Government had a power of suo motu revision under Section 131(3) of the Customs Act, which could appropriately have been exercised in their favour in the present case. He submitted that on similar grounds we should also grant the relief sought.

4. For the respondent Collector, Shri Chandramouli submitted that the appeal to the Appellate Collector had been rightly rejected as time-barred and that the present appeal should be rejected.

5. We have carefully considered the submissions made by the learned advocate for the appellants. They had filed an appeal to the Appellate Collector of Customs under Section 128 of the Customs Act as it then stood. There was a specific provision in that section requiring such appeals to be filed within three months from the date of communication of the decision or order appealed against. On sufficient grounds this period could be extended by another three months, but in no case could it exceed six months. In the present case, the appeal was filed to the Appellate Collector more than 2k years after the date of communication of the original order and it was therefore well beyond the maximum time permissible under Section 128. In the circumstances, the Appellate Collector could not have passed any order other than the one rejecting the appeal as time-barred.

6. Shri Vcnkataraman had sought to canvass before us the merits of the appellants' case. The merits could only be gone into if the condition of presentation within the prescribed time limit was satisfied. It is well-known that whereas a litigant has independently of any statute a right to institute any suit of a civil nature in some Court or another, a right of appeal does not exist unless it is clearly given by statute.

"There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, however frivolous the claim, that the law confers no such right to sue. A suit for maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law.

That explains why the right of appeal is described as a creature of statute"-(AIR 1974 SC 1126 at p. 1129 in Ganga Bai v. Vijay Kumar). It follows from this that where a right of appeal is given by statute, the accompanying conditions laid down in the statute must be fulfilled. In a case where that has not been done, as in the present case, the appellant would not be entitled to have his appeal considered.

7. As regards Shri Venkataraman's argument that we could exercise a power analogous to that of the Central Government under Section 131(3), we must observe that, in terms of Section 131B, Customs Act, this matter has to be proceeded with as if it were an appeal filed before us. The provisions governing appeals to this Tribunal do not appear to contain a power analogous to Section 131(3). Even otherwise, in accordance with the general principles governing appellate decisions, we would have been justified in modifying the order of the lower authority only if we were of the view that it was not a proper or legal order. Having found that the order of the Appellate Collector was perfectly legal and proper, being the only order he could have passed in the circumstances, there would in any case be no justification for that order to be modified.

8. In the result, we uphold the order of the Appellate Collector of Customs and reject this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //