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Collector of Customs Vs. Calcutta Hardware Stores - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1986)LC618Tri(Kol.)kata
AppellantCollector of Customs
RespondentCalcutta Hardware Stores
Excerpt:
.....and at that end also sometimes delay occur in. (4) the above narrartion is factual. delay in filing appeal by four days only, is unintentional. delay may kindly be condoned." the facts of the present case do not justify the condonation of delay.the judgment cited by the learned sdr in the case of state of uttar pradesh v. bahadur singh and ors reported in 1983 ecr 1556 (d) does not help him. in the said judgment, the hon'ble supreme court had held that 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 for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which.....
Judgment:
1. The Collector of Customs, Calcutta has filed an appeal being aggrieved from Order No. Cal-Cus-1237/83, dated the 2nd day of June, 1983, passed by Collector (Appeals), Calcutta. The said appeal along with a letter of authority by the Collector and a covering letter was presented in the Registry on the 8th day of September, 1983. The appeal was posted for hearing on the 10th day of June, 1985 and it was brought to the notice of the appellant that prima facie the appeal is hit by limitation as in Column No. 3 of Form CA-3, the date of communication of the order has been mentioned as 4th June, 1983. The learned SDR has requested for adjournment as the appellant intended to move an application for condonation of delay. In the interests of justice, the appeal was adjourned for the 16th day of July, 1985.

2. A.K. Sarkar, the learned Senior Departmental Representative has appeared on behalf of the appellant land G.P. Sureka, Chartered Accountant, appeared for the respondent.

3. A.K. Sarkar, the learned SDR has pleaded that the appellant had filed an application for condonation of delay along with a covering letter on the 4th day of July, 1985. The learned SDR has referred to the contentions made in the application for condonation of delay.

Relevant portions of the appellant's application for condonation of delay dated 3rd day of July, 1985 received in the Registry on 4th July, 1985 is reproduced as under : "Immediately after the Collector's order was obtained all formalities required in this connection were completed for filing the same before the Hon'ble Tribunal. This also required authorisation of the Collector for filing the appeal by an officer which was obtained on 3-9-1983 that is on the last day of filing as because the Collector was outside Calcutta for few days. Secondly, immediately after completion of the all documents it was ready for despatch by Special Messenger. Since the Staff posted in this Tribunal Cell was absent on that day it was sent by another special messenger. Incidentally 3rd September, 1983 was Saturday followed by Sunday. In this process in spite of best efforts appeal could not be physically issued earlier. It is not out of point to mention here that such appeals are always noted in a despatch book for receipt by the recipient and at that end also sometimes delay occur in." The learned SDR has referred to a judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Bahadur Singh and Ors., reported in 1983 ECR 1556 (D). The learned SDR has pleaded that in view of the judgment of the Hon'ble Supreme Court cited by him a very liberal view should be taken in condoning the delay in filing of the appeal, which is only four days. He has argued that the appellant was prevented by sufficient cause in the late submission of the appeal and the delay in the filing of appeal may be condoned.

4. In reply, Sureka, the learned Chartered Accountant has pleaded that the appellant has not been able to make out a case for condonation of delay and appeal should be dismissed being hit by limitation.

5. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that under Sub-section (3) of Section 129A of the Customs Act, 1962, an appeal has to be filed within 3 months from the date on which the order sought to be appealed against is communicated to the Collector of Customs and under Sub-section (5) of Section 129 A the Appellate Tribunal may admit an appeal after the expiry of the period of limitation as provided under Sub-section (3) of Section 129A. Sub-sections (3) and (5) of Section 129A of Customs Act, 1962 are reproduced as under : "(3) Every appeal under this Section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Customs, or as the case may be, the other party preferring the appeal.

(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." A simple perusal of the Sub-sections (3) and (5) of Section 129A of the Customs Act, 1962 show that this Court has got power to condone delay provided the appellant is in a position to satisfy the court that he was prevented by sufficient cause for the late filing of the appeal. It is a settled law that the judicial discretion has to be exercised judicially. In column No. 3 of the memorandum of appeal and para No. 1 of the application for condonation of delay, the date of communication of the order in appeal has been mentioned as 4th June, 1983. In the application for condonation of delay, the appellant has mentioned the circumstances which resulted in the delayed submission of the appeal.

Para Nos. 3 and 4 of the application for condonation of delay dated 3rd July, 1985 are again reproduced as under : "Immediately after the Collector's order was obtained all formalities required in this connection were completed for filing the same before the Hon'ble Tribunal. This also required authorisation of the Collector for filing the appeal by an Officer which was obtained on 3-9-1985 that is on the last day of filing as because the Collector outside Calcutta for few days. Secondly, immediately after completion of the all documents it was ready for despatch by Special Messenger. Since the Staff posted in this Tribunal Cell was absent on that day it was sent by another special messenger. Incidentally 3rd September, 1983 was Saturday followed by Sunday. In this process in spite of best efforts appeal could not be physically issued earlier. It is not out of point to mention here that such appeals are always noted in a despatch book for receipt by the recipient and at that end also sometimes delay occur in.

(4) The above narrartion is factual. Delay in filing appeal by four days only, is unintentional. Delay may kindly be condoned." The facts of the present case do not justify the condonation of delay.

The judgment cited by the learned SDR in the case of State of Uttar Pradesh v. Bahadur Singh and Ors reported in 1983 ECR 1556 (D) does not help him. In the said judgment, the Hon'ble Supreme Court had held that 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 for 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 cause on the ground of delay'. In the same judgment, the Hon'ble Supreme Court had also held that 'The only known principle is that the court may not examine stale causes as the court helps the vigilant and not the indolent. It is a Rule devised on the principle of judicial circumstances and has to be applied wisely.' In the case before the Hon'ble Supreme Court cited by the learned SDR, the Hon'ble High Court had refused to entertain a delayed Writ Petition and it is a settled law that there is no limitation period prescribed by any statute for filing a writ petition. The present appeal before us is an appeal under Section 129A of the Customs Act, 1962 where a specific period for limitation has been provided. Thus, the judgment cited by the learned Senior Departmental Representative A.K. Sarkar does not help him in any way. It is a settled law that the discretion in condoning the delay has to be exercised judicially and the appellant is expected to explain each and every day's delay.State of West Bengal v.Administrator Howrah Municipality reported in AIR 1972 S.C. 749 in para Nos. 26 and 27, had held as under : "26. The legal position when a question arises under Section 5 of the Limitation Act is fairly well settled. It is not possible to lay down precisely as to what facts or matters should constitute "sufficient cause" under Section 5 of the Limitation Act. But it may be safely stated that the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps, which he could have or should have taken. Here again, what would be such necessary steps will again depend upon the circumstances of a particular case and each case will have to be decided by the courts on the facts and circumstances of the case.

Any observation of an illustrative circumstance or fact, will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts amount to "sufficient cause" or not. It is needless to emphasise that courts have to use their judicial discretion in the matter soundly in the interest of justice.

27. D. Mukherji, learned Counsel for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State." In the said judgment, the Hon'ble Supreme Court had discussed the case of Ramlal v. Rewa Coalfields Ltd., reported in AIR 1962 S.C. 361. In the said judgment, the Hon'ble Supreme Court had held as under : "In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decreeholder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decreeholder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan, (1980) ILR 13 Mad. 269. Section 5 gives the Court a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant."Ramlal v. Rewa Coalfields Ltd. was followed by the Hon'ble Allahabad High Court in the case of Sohan v. Abdul Hameed Khan reported in AIR 1976 Allahabad 159 in which it was held that '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 Hon'ble Cuttack High Court in a case reported in ILR (1977) 2 Cut 648 (DB) had held that : "In dealing with the application for condonation of delay the Court has to keep in mind two important considerations. First consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light-heartedly disturbed. The second consideration is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay. In other words, even though sufficient cause for condonation of delay is shown, nevertheless, the Court has still to exercise its discretion whether it should condone delay or not having regard to the past conduct of the party seeking condonation." In the instant case, the appellant has not been able to prove that he was prevented by sufficient cause in the late submission of the appeal and we held that the appellant was not prevented by sufficient cause in the late filing of the appeal and it is not a fit case whether this Court should exercise its discretion under Sub-section (5) of Section 129 A of the Customs Act, 1962. During the course of the arguments, we had also brought it to the notice of both the parties that this Court has passed a number of judgments on the point of limitation and this Court has taken the view that the limitation can be condoned only in those cases where the appellant can explain each and every day's delay and he was prevented by sufficient cause in the late filing of the appeal. The appeal is dismissed being hit by limitation. Since we are dismissing the appeal on the point of limitation, we are not going into the merits of the appeal.


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