1. This order will dispose of the appellants.-applicant (hereinafter cailed applicant) application under subsection (5) of Section 129-A of the Customs Act, 1962 for condonation of delay in filing appeal after expiry of the time-limit fixed under Sub-section (3) ibid.
2. The order dated 22-2-1982 passed by Collector of Customs (Appeals), Madras challenged before the Tribunal through appeal in respect of which the present application for condonation of delay is filed, was communicated to the applicant on 31-8-1982. Under Sub-section (3) of Section 129-A of the Act an appeal has to be filed within three months from the date on which the order appealed against is communicated. Thus under this provision the applicant, should have filed the appeal by 30-11-1982, The applicant, however, filed appeal to the Tribunal on 29-11-1983.
3. The application does not specifically state when the time-'limit for filing the appeal expired though in Para 3 of the application, there is a reference to a recital in the printed preamble of the order that Revision Application against the order could be presented to the Additional Secretary, Ministry of Finance, Department of Revenue, New Delhi within six months from the date of communication of the order.
The application does not state as to what exactly is the delay in filing appeal. This statement has particularly become necessary in view of the arguments advanced by the parties referred to later.
4. In the application, the grounds urged for condonation of delay mainly are that Shri Kartik M. Patel, who is the Managing Partner of the applicant firm, was ailing from chronic stomach disorder which could not be cured by allopathic treatment and the ailment resulted in necessity of prolonged bed rest and unani treatment. This treatment lasted till November, 1983. Thereafter, the applicant claims to have preferred (presumably means drafted) a Revision Application to the Government of India but before the same could be submitted, the applicant came to know of the Constitution of Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and the necessity of filing of appeal before this body. The applicant was not aware of the new procedure and after consulting a practising consultant at Madras, filed appeal before the Tribunal on 29-11-1983. The applicant claims that delay in filing the appeal was due to the circumstances aforesaid and request for condonation of delay.
5. At the hearing of the application, Shri B.B. Gujral, Advocate represented the applicant and S/Shri S. Chatterji and V. Lakshmi Kumaran, Departmental Representatives, the respondent non-applicant. By this time Shri Kartik M. Patel, Managing Partner of the applicant had also filed an affidavit dated 20-2-1985 in support of the application alongwith a medical certificate dated 29-11-1983 issued by one Dr. S.R.Balasubrahmanyan, Mina Nursing Home, Guindy, Madras. This certificate certifies that Shri Kartik M. Patel had been suffering from hypertension with angina and complete bed rest was advised from August, 1982 to November, 1983 for restoration of his health. During arguments, Shri Gujral learned Advocate for the applicant submitted that the applicant in view of the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982, could file appeal within six months from the date of communication of the order. Thus, the applicant could file appeal till 28-2-1983. The delay in filing any appeal should be computed from 1-3-1983 till 28-11-1983. Shri Gujral argued that delay on part of the applicant in filing the appeal was due to the fact that Kartik M. Patel was the Managing Partner of the applicant and he alone was responsible for looking after litigation. The other partner based in Bombay, was a sleeping partner. For finding out whether there was sufficient cause for not presenting the appeal within the stipulated period under subsection (5) of Section 129 of the Act, he submitted, it had to be seen whether the applicant could have avoided the delay. Kartik M. Patel, the Managing Partner responsible for filing the appeal according to the affidavit and medical certificate, was seriously ill and confind to bed and thus sufficient cause within the meaning of the provisions was made out. He strongly submitted that on the facts and circumstances of the case, the case of condonation of delay was made out. Shri Gujral in support of his arguments relied on State of Rajasthan v. Ramnath and Ors.-AIR 1972 Rajasthan 181 and Hindustan Aeronautics Ltd. v. State of Orissa and Anr.- 6. Opposing Shri Gujral's contention, for the non-applicant Shri V.Lakshmi Kumaran argued that sufficient cause within the meaning of the provision was not made out. He further submitted that in another case relating to a Reference application in the case of Collector of Central Excise v. Hydraulics Ltd.-1984 (16) E.L.T. 254, the Bench had not condoned the delay of even two days. According to him, the time-limit of six months stipulated by the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982 was applicable to a case where in fact an appeal had been filed within the time stipulated in the order because the order was only a transitional provision. The order was not applicable to a case where appeal was filed after expiry of the stipulated time-limit in the order. In this case, the applicant filed appeal only after expiry of the time-limit stipulated in the order and therefore, the applicant cannot take benefit of the provision for extended time-limit of six months. He submitted that on the facts of the case, the two rulings cited by Shri Gujral were not applicable.
He prayed for dismissal of the application.
7. We have carefully considered the arguments advanced by the parties.
Taking up first whether Customs, Central Excise and Gold (Control) Removal of Difficulties Order would be applicable only when the appeal was filed within the time stipulated in the order and not after expiry of the time-limit.
8. We find nothing in the order to take such a narrow view. We do not accept Shri V. Lakshmi Kumaran's contention on this account. We would therefore, compute the delay in filing the appeal not from 1-12-1982 as urged by Shri Lakshmi Kumaran but from 1-3-1983 as submitted by Shri Gujral. On this aspect, we accept Shri Gujral's contention.
9. As would be seen Sub-section (5) of Section 129 of the Act, is analogous to Section 5 of the Limitation Act, 1963. For ease of reference, it is extracted below : "(5). The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in Sub-section (3) or Sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period." State of Rajasthan v. Ramnath and Ors. (Supra) is a case relating to condonation of delay under Section 5 of the Limitation Act, 1963. The Rajasthan High Court declined to condone delay of two days in filing appeal claimed to have caused due to mistake in calculation and Government correspondence. It was also held that existence of sufficient cause justifying condonation of delay has to be decided with regard to the fact and circumstances of each case. In Hindustan Aeronautics Limited case (supra), the High Court of Orissa rejected the request of the State of Orissa to condone delay of 137 days in filing appeal- delay claimed to have been due to official consultation and correspondence and quashed the order of the Tribunal condoning delay in favour of State of Orissa. The Orissa High Court went on to add that such power is discretionary. When discretion vests in a judicial or quasi-judicial body it has to be exercised in accordance with the well settled principles of justice and not in an arbitrary manner.
10. We do not see how the two rulings help the applicant. It has yet to be seen whether on the facts and circumstances of the case, sufficient cause for condonation of 272 days is made out. Now in the application of condonation of delay, the applicant claims that he was suffering from cronic stomach disorder and could not be cured by allopathic treatment and therefore, had to resort to unani treatment which lasted till November, 1983.
11. In the affidavit, it is claimed that Kartik M. Patel first suffered from stomach ache, it was diagonosed as stomach ulcer and was later found to be serious illness involving heart attack, hypertension with severe chest pain. There is no mention in this affidavit of any unani treatment. The affidavit would have us believe that right from August 1982 till November 1983, Kartik M. Patel was under allopathic treatment. Same would be true of the medical certificate. As would be seen these contradicts the application where Kartik M. Patel claimed to have given up allopathic treatment and then resorted to unani treatment. The affidavit and medical certificate read together do not inspire confidence and do not make out a case justifying condonation of delay of 272 days.
12. It is well-settled that for showing sufficient cause for condonation of delay under the provision of Section 5 of Limitation Act, 1963, each day's delay should be properly explained. Mere illness of Kartik M. Patel would not be sufficient cause for condonation of delay unless it be shown that the nature of the illness was such that it would prevent all action on his part. The nature and magnitude of illness and the fact surrounding the inability to act have all to be assessed and looked into. If we look into Kartik M. Patel's affidavit and certificate, the two are vague and bald. They only generally refer to illness and necessity of rest. If the illness was of such a long duration of 15 months and the delay in filing the appeal is of the order of 272 days, one would expect necessary particulars detailing the various stages of illness whether all along the period of 272 days of delay, Kartik M. Patel was so ill that he could not take any steps for filing the appeal. The application, the affidavit and medical certificate do not at all give any idea or particulars as to whether within this period, Kartik M. Patel was in such a serious condition as not to be capable of taking steps for filing appeal. The three also do not give any idea whether within this long period, Kartik M. Patel's condition improved at any stage. It is unbelievable that during this long period, Patel was in such a serious condition so as not to have been able to instruct the other partner, employee or counsel for filing the appeal. The applicant claims of delay constituting sufficient cause for condonation of delay must also be rejected for want of necessary particulars about duration of illness and its seriousness during the period of delay in filing the appeal.
13. From the aforesaid discussion, we find that the applicant has failed to make out sufficient cause justifying condonation of delay of 272 days in filing the appeal. We, therefore, reject the application for condonation of delay. As a consequence, the Stay Application and the Appeal are also rejected.