1. M/s. Stretchlon Private Limited, Bombay (hereinafter referred as the appellant) filed a revision petition dated 14th September, 1978 before the Central Government on 20th September, 1978 as per Revenue Registry's stamp on record, against Order in Appeal No. S/49/286/77R dated 29th of August, 1978 passed by the Appellate Collector of Customs, Bombay in relation to the Order No. S/4-C-226/76-R dated 29th of January, 1977 of the Assistant Collector of Customs, Bombay. The said revision petition came to be transferred to the Tribunal as an Appeal under Section 131-B of the Customs Act, 1962 and is accordingly being disposed of as such.
2. Shri P.G. Gokhale, Advocate, made a serious grievance that the Collector of Customs (Appeal), Bombay simply did not appreciate the facts submitted before him and unjustifiably refused to condone delay of about 26 days in filing the appeal before him for which there were solid valid reasons. It shall be in the fitness of things if the relevant portion of the Collector of Customs (Appeal) Order dated 1-6-1977 is brought in focus and for that purpose it is reproduced as follows : "The order in original was received by the appellants on or around 7-2-77. Against this order of the lower Authority the appeal was filed on 1-6-77 which was received in this office on 2-6-77 i.e.
after a period of 3 months time laid down under Section 128 of the Customs Act, 1962.
The appellants could not lead any evidence to show that they were prevented by sufficient cause in filing the appeal in time.
3. We only have to mention a few accepted facts to accept Shri Gokhale's prayer that the Appellate Collector of Customs (Appeal), Bombay be directed to condone the delay and decide the appeal on merits.
4. The appellant imported a consignment of 26 pallets of Polyester filament yarn per s.s. JALADHIR and had cleared the same under Bond Bill of Entry No. 1436/235 dated 25-10-1976. Later, this consignment was cleared for home-consumption on three separate lots of 5 pallets, 8 pallets and 13 pallets on three different dates, viz., 15-12-1976, 23-12-1976 and 24-1-1977 respectively. The suppliers had declared the denier of the yarn on the original invoice as 76 Dtex (equivalent to 68 den.) but the Customs Authorities sent samples for Laboratory tests to ascertain the denier. After two Laboratory tests, the denier was certified to be 76.42. However, the Custom's Authorities charged CVD at the rate applicable to 68 denier. The appellant cleared the consignment in three separate lots on payment of duty and CVD at the rate of Rs 70/- per kg. as demanded by the Customs Authority under protest and the right to prefer refund claim. Consequently, three separate claims for refund of the excess amount of CVD charged and collected, were made.
5. Some documents were called for by the Assistant Collector of Customs in connection with the appellant's claims, but since there was only one set of original documents, the same could not be submitted for all the three claims. The situation was explained to the Assistant Collector who was further requested to verify the documents which had been submitted to his office in connection with another pending claim. The Assistant Collector, however, without discussing or appreciating the request, rejected the claim on the ground that the documents called for were not submitted. The claim with which the original documents were attached was processed by the Assistant Collector. An order rejecting the claim was passed on 4th of October, 1977. Against the said order, the appeal was allowed by the Appellate Collector of Customs, vide order in appeal No. S/49-1721/77R dated 18th of August, 1978 and refund was directed to be allowed. A photostat copy of the appellate order has been submitted before us.
6. Since the Assistant Collector had insisted on original documents for entertaining the claim, and the appellant wanted to furnish the same along with their appeals, there was considerable delay in releasing the documents by the Customs after verification and that resulted in late filing of appeal. As per the assessee's averment, the appeal was submitted immediately after receiving the documents and though this averment was made as early as in 1978, the same was not controverted by Shri Kunnikrishnan who appeared for the Revenue.
7. In our view, the attitude of the Revenue should not be as to why a tax payer should be believed, but as to why he should be disbelieved, if his version is not palpably wrong and unbelievable. If this principle is kept in view, tax litigation if not considerably reduced, can be narrowed down to dispute of principles on accepted facts.
8. On the given facts of the case, we reverse the order of the Appellate Collector of Customs, Bombay and condoning the delay in filing the appeal before him, direct him to pass fresh orders on merits. If assessee's claim of refund has already been accepted, in relation to release of one of the three lots out of one consignment imported, we see no reason as to why a different view should be taken unless the Order dated 18th of August, 1978 passed by the Appellate Collector of Customs, Bombay (supra) is subject matter of review and has not been accepted by the Revenue.