1. The Department has challenged the Order-in-Appeal No. S/49-608/84 CL dated 14-6-84 passed by the Collector of Customs (Appeals), Bombay, by filing appeal before this Tribunal under section 129A(1) of the Customs Act, 1962. That appeal was received in the Registry of the Tribunal on 14th December, 1984. The appeal having been filed after the expiry of the period of limitation of three months, the Department has filed this application for condonation of delay. The reasons given for condonation of delay are as under : "(1) The item is classifiable under heading 15 or 20 of the CTA depending upon the purity of the same. To verify it, a detailed study was required and it took a time to come to the conclusion that the order-in-appeal does not appear to be correct.
(2) The file was thereafter submitted to Collector for his order on 15-11-84 and the sanction was accorded by the Collector on 17-11-84.
The purity of the item imported is a deciding factor for classification of the item and if the Collector Appeal's decision is allowed to stand it will change the practice of the Custom House and will also have repercussions on the Government revenue." On these grounds the Department sought condonation of delay which is of about 2 months.
2. We have heard Shri Sundar Rajan, the Departmental Representative and Shri Babu Iyer, the Legal Executive of the respondent and gone through the record.
3. Shri Sundar Rajan, Departmental Representative filed certain documents giving justification for the condonation of this delay.
According to the explanation submitted the Order-in-Appeal was received in Custom House on 28-7-84 and the Refund Section sent it to Group B on 3-8-84. It was received in Group B on 4-8-84. Assistant Collector Group B sent it to Group C on 4-8-84 and then it came back to Group B on 6-8-84 and referred to the expert Appraiser on 8-8-84 by Group B. The Appraiser gave his observation on 17-8-84 of Group C and the file was Received in Group B on 23-8-84. Assistant Collector Group B submitted the file to Deputy Collector on 23-8-84, who sent back the file to A.C.Group B on 28-8-84. Asst. Collector of Customs, Group B sent the file for technical advice on 30-8-84 and received back only on 7-11-84.
Asst. Collector Group B submitted the file to Deputy Collector Group B on 9-11-84 who recommended the appeal on 15-11-84 and Collector passed the order to file the appeal on 17-11-84, whereas the time limit had already expired on 28-10-84.
4. According to Shri Sundar Rajan, though the opinion of the Deputy Chief Chemist which was obtained in the year 1983 was available regarding this product, but in view of the order passed by this Bench of the Tribunal in the case of Collector of Customs, Bombay v. Dai-Ichi Karkaria Pvt. Ltd., Bombay (Order Nos. C-548 to 555/84 dated 21-8-84), it became necessary to solicit the opinion of the technical expert in the light of the observations given by the Hon'ble Members of the Bench deciding that matter and the technical expert took considerable time i.e. from 30-8-84 to 7-11-84. The time limit had not expired when the Department sought advice of the technical expert. It is on account of the delay caused in procuring technical advice of the Chief Chemist, the matter was delayed. According to Shri Sundar Rajan this delay is justifiable and, therefore, it be condoned.
5. Shri Babu Iyer, Legal Executive of the respondent countered the arguments of Shri Sundar Rajan and submitted that the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act cannot of construed too liberally merely because the party in default is Government. He cited a decision of the Supreme Court in the case of State of West Bengal v. Howrah Municipality (AIR 1972 SC 749) in support of his contention. He further submitted that whether it is Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. He also drew our attention towards another decision of the Supreme Court in Union of India v. Ram Charan (AIR 1964 SC 215) that there is no question of construing the expression "sufficient cause" liberally because the party in default is the Government. According to him, the law of limitation operates equally for or against a private individual as also a Government. No special indulgence can be shown to the Government which in similar circumstances is not to be shown to an individual suitor. He also drew our attention towards a decision of the Manipur High Court in the case of Union of India v. Chingangbom Indra (AIR 1970 Manipur 32) in support of his contention that the Government officers charged with the double duty of taking the decision and instituting the proceedings in courts must not carry the impression that they can bank on the indulgence of courts even if they take their own time in processing the papers of making up their mind. The Court would certainly not put up with any latches on the part of the Government officials in the matter of court proceedings, just as it would not do in the case of a private litigant.
6. He also cited various decisions of the East Regional Bench at Calcutta reported in 1984 (16) ELT 656, 1984 ECR 1588, 1984 ECR 1163, 1984 ECR 1676, in support of his contention that each day delay should be explained and the delay should not be condoned in a light manner.
According to Shri Babu Iyer, the Department is negligent in not pursuing the matter promptly which has resulted in filing the appeal beyond time. There is no sufficient cause for condonation of this delay of about 2 months when the opinion of the Deputy Chief Chemist regarding this very product was available with the Government. Shri Babu Iyer submitted that if the delay is condoned, he would be divested with the valuable right which had accrued to him.
7. As far as the legal proposition is concerned, there is no dispute that the law of limitation applies equally for or against a private individual as also a Government. No special indulgence can be shown to the Government which in similar circumstances is not to be shown to any individual suitor, but one has to take a practical view of the working of Government without being unduly indulgent to the slow motion processes of its wheels. Though the Limitation Act does not make any distinution between Government and private individual in the matter of condonation of delay under section 5, yet its case can be said to be different from that of an individual who has to make up his own mind and who can normally be presumed to aware of or familiar with all the relevant factors of the case. The Government, on the other hand, has to take into consideration the public interest involved and so long time may be required for enquiry and consideration before taking a final decision in the matter. The Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Bahadur Singh and Ors. reported in 1983 ECR 1556D has observed as under : "Not that the departmental authorities charged with a duty to implement the law should not be vigilant but one aspect cannot be overlooked that a departmental authority may delay the moving of the higher court with oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable. These are relevant considerations which must enter a judicial verdict before rejecting such case on the ground of delay." As per the decision of the Hon'ble Supreme Court, if the delay is explainable then it should be condoned keeping in view the public interest.
8. Now, we have to see whether the Department-Appellant has been able to explain this delay of about 2 months or not. The Department has specifically mentioned that the matter was sent for technical advice on 30-8-84 and it was received only on 7-11-84. This fact has not been denied by the respondent but it has only been alleged that there was no need of calling technical opinion second time when the opinion of the Deputy Chief Chemist which was obtained in the year 1983 with respect to the same product was available on record. The Department has met this objection of the respondent by satisfactorily explaining that in view of the decision of this Tribunal in the case of Collector of Customs, Bombay v. Dai-Ichi Karkaria Pvt. Ltd. (Order Nos. C-548 to 555/84 dated 21-8-84) the opinion of the Chief Chemist was necessary for the purpose of taking a decision whether the appeal should be filed or not. In that order passed by this Bench of the Tribunal the dispute was also with respect to the classification of the goods either under Chapter 15 or 29 of the Customs Tariff Schedule of 1975. Here also the dispute is whether this product is classifiable under Chapter 15 or 29 of the Customs Tariff Act, 1975. The product is also the same i.e., Fatty Alcohol.
9. We find that in view of the order passed by this Tribunal in the case of Collector of Customs, Bombay v. Dai-Ichi Karkaria Pvt. Ltd., it became necessary for the department to solicit the opinion of the Deputy Chief Chemist second time keeping in view the observations made by the Bench in that order and it is a sufficient explanation of filing the appeal beyond time.
10. Under these circumstances, we condone the delay in filing the appeal.