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Collector of Customs and Central Vs. Raidang Tea and Samdang Tea - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1987)(11)LC648Tri(Delhi)
AppellantCollector of Customs and Central
RespondentRaidang Tea and Samdang Tea
.....the supplemental appeals is condoned on an appropriate application. accordingly, the supplemental appeals filed, are taken on record after condonation of delay, almost as a rule ; (c) it was, accordingly, that the applicant was required by the registry to file the supplemental appeals, when, as per the previous practice, the applicant had filed one single appeal-admittedly, well within limitation ; (d) not merely that-the applicant would appear to have been guided by the decision of the tribunal itself in the west regional bench in 1983 e.t.r. 345 ; (e) nevertheless, the applicant hastened to file the supplemental appeals supported by condonation applications, without waiting for any reply on his representation from the registry ; (f) in this backdrop, it cannot but be held that the.....
1. These Appeals by the Revenue were all heard together on a question common to all of them, namely, the question of the condonation of delay in filing the Appeals.

(a) aggrieved by a composite Order in Appeal by the Collector (Appeals) on 29-6-1983, disposing of Appeal Nos. 117-167/ASM/83, and communicated to him on 23-8-1983, the Applicant filed one Single Appeal in the Tribunal on or about 28-10-83. That Appeal was registered as Appeal No. ED(SB)2326/83-D ; (b) the Registry of this Tribunal, however, informed the Applicant, by letter dated 6-2-84, that separate Appeals corresponding to the number of Appeals disposed of by the Collector (Appeals) and desired to be appealed against have to be filed; (c) citing the Order of the West Regional Bench of this Tribunal in the case reported in 1983 ETR 345 (Unique Pharmaceutical v. Collector of Customs, Bombay) in support, the Applicant submitted by letter dated 27-2-1984, that it was difficult in the prevailing circumstances, to file a plurality of Appeals in different sets and the Appeal already filed may be treated as Appeals against all the orders made by the Collector (Appeals) in the various Appeals before him ; (d) before any reply, as requested, was given by the Registry the Applicant had on 22-3-1984, submitted a plurality of identical sets of Appeals as per the Registry's direction ; (e) in addition, the Applicant also submitted condonation Applications in each of the Appeals in August 1984.

(a) the mere fact that a common order was made in a number of Appeals does not mean and imply that only one Appeal can be filed in respect of a plurality of cases disposed of by that common order.

The Applicant should have filed a separate Appeal in each of the cases in which he desires to appeal ; (b) the Applicant complied with the aforesaid requirement only after the efflux of the period of limitation prescribed for appeals to the Tribunal, in terms of S. 35B(3) of the Central Excises and Salt Act, 1944 (the Act, for short) ; (c) (i) in terms of S. 35B(5) of the Act, the delay in filing the Appeal after the efflux of the period of limitation prescribed in S. 35B (3) can be condoned only if the Tribunal is satisfied that there was sufficient cause for not presenting it within the period ; (ii) "sufficient cause" is established only by pleading facts and circumstances arising before the expiry of limitation and not those occurring after the expiry of limitation (Reliance on AIR 1981 SC 733-Ajit Singh v. State of Gujarat); (iii) there is no question of construing the expression "sufficient cause" liberally just because the party seeking condonation happens to be the Government. [Reliance on 1964 (3) SCR 467-Union of India v. Ram Charon and Ors.

(iv) further, each day's delay after the efflux of the period of limitation has also, necessarily, to be explained ; (v) the Application not being in conformity with the aforesaid requirements, the delay cannot be condoned.

4. It appears to us on a perusal of the records and the submissions made and otherwise that- (a) prior to the constitution of the Tribunal, it had been almost and invariable practice, of which we may take judicial notice, of entertaining one Revision or other proceeding against an Order-in-Appeal, notwithstanding that such order disposed of a plurality of Appeals and, strictly speaking, there should be as many Revisions as are disposed of by the common order and desired to be taken up in Revision ; (b) it is in the context of this past practice that it was considered that the Tribunal's insistence, all on a sudden, upon filing the appropriate number of Appeals might result in miscarriage of justice, unless the delay in filing the Supplemental Appeals is condoned on an appropriate application. Accordingly, the Supplemental Appeals filed, are taken on record after condonation of delay, almost as a rule ; (c) it was, accordingly, that the Applicant was required by the Registry to file the Supplemental Appeals, when, as per the previous practice, the Applicant had filed one Single Appeal-admittedly, well within limitation ; (d) not merely that-the Applicant would appear to have been guided by the decision of the Tribunal itself in the West Regional Bench in 1983 E.T.R. 345 ; (e) nevertheless, the Applicant hastened to file the Supplemental Appeals supported by condonation Applications, without waiting for any reply on his representation from the Registry ; (f) in this backdrop, it cannot but be held that the Applicant had acted bona fide and with due diligence in filing a Single Appeal in the first instance (and that Appeal was not barred by limitation); and the Supplemental Appeals even before he was reasonably satisfied about such a requirement ; (g) in AIR 1953 S.C. 419 (Narahari v. Shankar), it was held by the Hon'ble Supreme Court that where the Plaintiff preferred two Appeals from two decrees in one suit, and one of the Appeals was barred by limitation, the Plaintiff/Appellant should have been given the benefit of S. 5 of the Limitation Act, 1908, because, there was a conflict of decisions in regard to the number of Appeals that were, actually, required to be filed. The facts in these Applications for condonation of delay are not different seeing that there was a conflict between the decision of the West Regional Bench of this Tribunal and the views of the Registry here on the issue ; (h) while it is true that in the decisions of the Supreme Court relied upon by the Respondent, it was held that "sufficient cause" has to be strictly interpreted and each day's delay beyond the expiry of the period of limitation has, of necessity, to be explained, none of them appears to be a case where, indeed, an Appeal was, bona fide, filed in time and it so happens, a plurality of Supplemental Appeals required to be filed, were actually filed after the expiry of the period of limitation ;(Sandhya Rani v. Sudha Rani), the Appellant honestly, though erroneously, believed that a decree in a suit for specific performance was a preliminary decree and till a deposit in terms thereof was made, there was no decree against which she could appeal. "The decree also provided that failure to deposit would entail dismissal of the suit. The defendant may honestly believe that if the consideration is not deposited the suit would stand dismissed and it would not be necessary to prefer an appeal at all.

Such a contention may not stand the scrutiny of a law Court but the question to which we must address ourselves is whether the defendant vendor on account of this peculiar situation could be said to be prevented by a sufficient cause from preferring an appeal in time?" It was held that "it is, undoubtedly, true that in dealing with the question of condoning the delay under S. 5 of the Limitation Act the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay, vide Sitaram Ramcharan v. M.N. Nagarshana (1960) 1 SCR 875 at 889 ; (AIR 1960 S.C. 260 at pp. 265-66). However, it is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause' under S.5 of the Limitation Act. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an appeal should not have been for reasons which he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case [vide State of West Bengal v. Administrator, Howrah Municipality [(1972) 2 SCR 874 : AIR 1972 S.C. 749]. Discretion is conferred on the Court before which an application for condoning delay is made and if the Court after keeping in view relevant principles exercises its discretion granting relief unless it is shown to be manifestly unjust or perverse, this Court would be loathe to interfere with it." (j) as already stated, the Applicant had not acted negligently, or was guilty of inaction or want of bona fides. Nor was it as if there was no conflict in views as to the number of Appeals required to be filed.

5. Applying, therefore, the ratio of the aforesaid two decisions, we hereby, condone the delay in filing the Supplementary Appeals.

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