1. This is an application for condonation of delay in filing the appeal CD(BOM)/370/86. In the delay condonation application it was stated that the Collector of Customs passed an order on 17-1-1986 cancelling the Applicants' custom house agent licence. In the preamble to his order, the Collector stated an appeal against his order would lie to the Central Board of Excise and Customs, New Delhi. According to the directions contained in the said preamble, which was also confirmed by the Bombay Customs, an appeal was filed with the Central Board of Excise and Customs in the month of March 1986 within the period of limitation. But the Board by its letter dated 25-3-1986 informed the Applicants' Advocate that the appeal in the above matter lies with the Customs, Excise and Gold (Control) Appellate Tribunal and he was advised to file the appeal before the Appellate Tribunal. It was then stated in the application as the managing partner of the Applicants was out of India almost for the whole of the month of April and on his coming to Bombay once again he made necessary enquiry with the Office of the Central Board of Excise and Customs and a confirmation from the said office that the appeal would lie before Customs, Excise and Gold (Control) Appellate Tribunal, Bombay, the appeal was filed before the Tribunal on 14th May, 1986.
2. In the application, the Applicant did not state any reasons as to why the appeal was not filed before the Tribunal after the receipt of the communication from the Central Board of Excise and Customs except of course that the Applicant was out of India for the whole of the month of April and on his coming to Bombay he made necessary enquiry with the office of the Central Board of Excise and Customs to confirm, but then when the application came up for consideration Shri R.J.Majra, Advocate for the Applicant sought time to file an affidavit of the managing partner. His request was granted and the managing partner had filed the affidavit. In this affidavit, after referring to the Collector's order, particularly to the preamble position and the letter dated 25-3-1986 received by the Applicants' Advocate, it was stated that his Advocate received a letter dated 25-3-1986 on 3rd April 1986 and left a message at the Applicants office that he should see him immediately, but the Applicant could not see him because he was not in Bombay. He was in Hong Kong from 5-4-1986 to 24-4-1986 and he was in New Delhi from 29th April to 10th May. He tried to contact his Advocate on telephone on 25-4-1986 but his Advocate was not available. He went to his Advocate's office on 28-4-1986. Then he was told that the Advocate would not attend office for two days, i.e. on 28th and 29th.
Immediately on his coming to Bombay on 10-4-1986 (must be mistaken for May 1986) he saw his Advocate. On 12-5-1986 his Advocate told him that the appeal which was filed by him before the Board would have to be filed before the Hon'ble Tribunal. His Advocate made suitable changes in the Memorandum of Appeal. It was retyped, required copies made and necessary condonation application was made. Finally, the appeal was filed on 15-5-1986. It was further stated that there was no negligence on his part. There was due deligence.
3. When this application came up for, consideration again, Shri Majra the Applicant's Advocate contended that since an appeal had been filed as directed in the preamble to the Collector's order before the Central Board of Excise and Customs within the period of limitation, there is no delay at all and therefore, there is no need even to make an application for condonation of delay. Alternatively, Shri Majra contended that it was only on 3-4-1986 the Applicant's Advocate came to know by reason of the letter dated 25-3-1986 that appeal has to be filed before the Tribunal and therefore the date of communication should be treated as 3rd April and if that date is taken, the appeal filed on the 15th May 1986 is within the prescribed period of 3 months and therefore not barred by time. Shri Majra relied on the two decisions reported in 1983 E.L.T. 1943 (CEGAT) Additional Collector of Central Excise and Customs, Nagpur v. Mandlal Milkiram Bhatia, Atnravati and 1980 E.L.T. 695 (Bom.) Deccan Sales Corporation and Anr.
v. Assistant Collector of Central Excise and Ors. It was also submitted by Shri Majra that the Board could have 'orwarded the appeal directly to the Tribunal. In that event the Tribunal would have entertained the appeal and the question of filing condonation application would not arise. Finally, Shri Majra contended that the only male partner is the managing partner was out of Bombay during the whole of the month of April and upto 10th May and there has been no negligence or inaction on the part of the applicant. In the circumstances, the delay may be condoned.
4. Shri Senthivel, the learned Senior Departmental Representative, however, vehementally opposed the delay condonation application. He urged that the contention of the Applicant that he was misled by the preamble to the order cannot be accepted. There is a primary responsibility on the party to ascertain as to the appellate forum. If the party has been diligent he should have known as to which was the appellate forum. The appeal is provided under the statute and the Advocate would have known this statutory provision. It was further contended by Shri Serithivel that even according to the Applicant the Board communicated to him that appeal would lie to the Tribunal and the Advocate received the communication on 3-4-1986 and no appeal was filed till 15th May 1986. The explanation offered is not at all convincing and there has been no deligence on the part of the Applicant. His visits to various places for his business purposes would not be sufficient ground to condone the long delay of 42 days. Shri Senthivel relying on the decision of the Supreme Court reported in 1962 SC 361 urged that each day's delay is required to be explained and there is hardly any explanation. Finally, Shri Senthivel submitted that the Advocate need not have waited for his client to file the appeal because the appeal which had been filed before the Board had been sent back to the Advocate and he could have presented the same before the Tribunal.
He, therefore, prayed that the application may be rejected. In reply, Shri Majra submitted that no Advocate would himself file an appeal even if it was to the interests of his client without consulting his client.
He, therefore, submitted that he could not have presented the appeal filed before the Board because he did not have any vakalatnama to file an appeal before the Tribunal.
5. We have carefully considered the submissions made on both the sides.
The order appealed against was dated 17-1-1986 and communicated to the party also on the same date. The appeal should have been filed within 3 months from that date, i.e. on or before 17th April 1986. But the appeal was actually filed on 16-5-1986. Thus, there was a delay of 29 days in the presentation of the appeal.
6. For the Appellants their learned Advocate Shri R.J. Majra submitted that in the preamble to the order the Appellant was directed to prefer an appeal before the Central Board of Excise and Customs and accordingly an appeal was filed before the Central Board of Excise and Customs on 5-3-1986. On the zerox copy of the covering letter addressed to the Board it is seen that the appeal was received in the Board's office on 18-3-1986. Shri Majra contended that since the appeal was filed before the expiry of 3 months from the date of communication of the order, there was no delay and therefore question of condoning the delay also would not arise. He also urged if the Board instead of returning the appeal to the Appellant's Advocate had forwarded to the Tribunal then also there would not have been any - delay and condonation of delay would not have arisen. Alternatively, Shri Majra contended that the Board by its letter dated 25-3-1986 received by the Advocate on 3-4-1986 communicated to the Appellants that the appeal has to be filed before the Tribunal and within 3 months from that date the appeal had been filed and therefore there was no delay in presenting the appeal.
7. Undisputably the preamble to the Collector's order require the Appellants to file the appeal before the Central Board of Excise and Customs, New Delhi. In the preamble it was also stated that the appeal should be filed within 3 months from the date of receipt of the order.
The Appellant had not only filed the appeal before the Central Board of Excise and Customs but had also filed within the prescribed period of limitation. If the Central Excise and Customs was the appellate forum the appeal would have been within time. Similarly, if the Board instead of returning the records to the Appellants had sent the records to the Tribunal directly then also the appeal would have been on time. But when the Board did forward the records to the Appellant's Advocate and the Advocate received the records on 3-4-1986. The period of limitation would expire on 17-4-1986. The Appellant had sufficient time to file the appeal before the Tribunal within the period of limitation. But then he chose to file the appeal after the period of limitation and there was a delay of 29 days. The contention of Shri Majra that because the appeal had been filed before the Board within the period of limitation the appeal filed before the Tribunal should be treated as an appeal filed within time and that there was no delay at all is not legally sound. As has been rightly contended by Shri Senthivel, learned Senior Departmental Representative the appeal is a statutory right.
Appeal has to be filed before the authority which was constituted as the appellate authority under the statute. There is an obligation on the part of the Appellant to ascertain the appellate forum before he files an appeal. If this enquiry was to be made by the Appellant then there would not have been any scope to prefer the appeal before the Central Board of Excise and Customs even though there was such a direction in the preamble to the order of the Collector. But then by reason of the preamble to the order it could be said that the Appellant was misled and his action in filing the appeal before the Board was bonafide. Therefore the period during which the matter was pending before the Board may have to be excluded for the purpose of computation of the limitation by applying the principles of Section 14 of the Limitation Act. The period that could be excluded would be the period commencing from the date of receipt of the appeal and the date of receipt of communication of the Board by the Advocate, i.e. 18-3-1986 to 3-4-1986 (inclusive of both the days).
8. The contention of Shri Majra that the limitation commences only from 3-4-1986, the date on which he received the Board's communication and the appeal filed within three months from that date is within time is again has no legal force. The statute requires that the appeal against an order should be preferred within a period of 3 months from the date of communication of that order. The date of communication contemplated is the order appealed against and not any communication received by the Appellant from any other authority before whom the Appellant had filed the appeal, even if the filing was for bonafide reasons. The decisions relied on by Shri Majra are strictly not applicable to the facts of the present case. In the case of Addl. Collector of Central Excise and Customs, Nagpur v. Nadlal Milkiram Bhatia, Amravati, the Tribunal did not go into the question of limitation. The facts of that case were the party filed an appeal before the Collector of Customs (Appeals), instead of before the Gold (Control) Administrator and the appeal was filed because of the order of the Additional Collector of Customs. The Collector of Customs (Appeals) decided the appeal on merits. Against his order the Department preferred an appeal before the Tribunal and contended that the order passed by the Collector of Customs (Appeals) was without jurisdiction and therefore his order is a nullity. A single Member of this Bench Shri Harish Chandra rejected the above contention holding that there had been no failure of justice and the Department was estopped from contending that the appeal was wrongly filed. It is seen from the facts of that case that: the Department did not raise any objection ragarding the jurisdiction when the matter was before the Collector (Appeals). In the said circumstances this Bench had held that there had been no failure of justice. In any case the said decision has no bearing to the facts of this case. In Deccan Sales Corporation and Anr. v. Assistant Collector of Central Excise and Ors. (1980 ELT 695) (Bom.) the Petitioners claim for proforma credit was rejected by a letter. Thereupon the Petitioners' Central Excise Consultant brought to the notice of the Assistant Collector that the order was not in the proper form and that a proper order may be passed so that the Petitioners can file an appeal. Ultimately, the Assistant Collector by his letter dated 14-3-1975 wrote to the Petitioners that they could go in appeal if they were aggrieved of the order under reference, viz., the order dated 13-2-1975, within three months from the receipt of his letter. Thereupon the Petitioners filed an appeal on 30-5-1975. The Appellate Collector by his order dated 26-2-1976 rejected the appeal on the ground that it was time barred. The revision filed was also rejected. Thereupon the matter was taken up by means of a Miscellaneous Application before the High Court of Bombay. The High Court allowed the application by observing "the letter dated 14th March 1975 indicates that the Petitioners were asked to file an appeal within three months from the receipt of that letter and the Petitioners did file the appeal within 3 months calculated from 14-3-1975. It is true that normally the period of limitation would be calculated from the date of the order which in the present case is 13-2-1975. But having regard to the fact that that order was not passed in a regular form the party's apprehension was that it could not file an appeal from such an order.
In these circumstances, the party's consultant had sought clarification by giving certain specimens of the type of orders which are normally passed by the Department". In these exceptional circumstances, the appellate authority ought to have taken into consideration the said letter dated 14-3-1975. This letter indicates that the party bona fide believed that the period of limitation would run from the date of the letter as indicated therein. In view of these peculiar circumstances, the appellate order as well as the revisional order cannot be sustained and both are quashed". In the present case the order of the Collector was not in the form of a letter. It was a speaking order. The circumstances which existed in the decision of the Bombay High Court are not existing in the present case and therefore that decision also has no application.
9. Shri Majra sought to justify the delay by urging that he received the letter of the Board only on 3-4-1986. But then the Appellant's managing partner was out of India and as such he could not communicate to him in the whole of the month of April 1986. It was further submitted that even though the Appellant's managing partner came to Bombay on 28-4-86, he could not meet his Advocate and for business tour he was out of Bombay till 10-5-1986 and immediately on return on 12-5-1986 he approached his Advocate and within 3 days the appeal had been filed. Therefore, there was no negligence on the part of the Appellant and the delay in the circumstances may be condoned. Shri Senthivel rightly contended that though there may be some justification for the Appellant not to file the appeal upto 3-4-1986, there was no justification whatsoever for not filing the appeal till 15-5-1986. Shri Senthivel's contention that managing Director's visits to various places for business purposes would not constitute sufficient cause to condone the delay. There is considerable force in this contention. The explanation offered was that the managing partner was out of Bombay for business purposes. This clearly indicates that the filing of the appeal was secondary so far as the managing partner was concerned. The delay could not be considered as one beyond the control of the managing partner. There was no due diligence on the part of the managing partner. The delay condonation is discretionary. The discretion can be exercised only if the party was diligent in prosecuting the matter.
10. The party who seeks to condone the delay must show by his conduct that he was diligent all along in taking appropriate steps and the delay was caused notwithstanding his due diligence. As has been observed earlier, there has been no due diligence on the part of the Appellant. The Board's communication was received by the Advocate on 3-4-1986. The last date for filing the appeal was 17-4-1986. There was ample time to file the appeal within the prescribed period. But then the appeal was actually filed on 16-5-1986. The submission of Shri Majra that besides the managing partner there was none else who could file the appeal and that the other partners were ladies cannot be accepted. The Appellants firm is a clearing agent. It would have employed some persons at least for transacting the business of the firm. Being a clearing agency firm it would have known also the legal positions since it has to advise its customers also. Even assuming that there was none other than the managing partner who was to act in the matter, the conduct of the managing partner does not indicate that he had acted diligently. Even according to his affidavit he had come to Bombay on 28-4-1986. He tried to contact his Advocate. It would mean he knew that the appeal has to be filed before the Tribunal. He could have written a letter or left a note to the Advocate instructing him to file the appeal. Even that had not been done. This clearly indicates inaction amounting to negligence.
11. The only other aspect that remains for consideration is that if the Board had forwarded the appeal records to the Tribunal then there would not have been any delay. Shri Majra had contended that the Board ought to have forwarded the papers to the Tribunal. In support of this contention he relied on the unreported decision of the Supreme Court in Civil Appeal No. 2223 of 1977 decided on 20-9-1977 Assam Co-operative Sugar Mills v. Central Board of Excise and Customs. Shri Majra did not produce the copy of the judgment. He only placed reliance on a passage found at page 1006 in Central Excise Law Guide by Shri R.K. Jain, 5th Edition, under the heading "Appeal filed with wrong authority". The learned author has stated "the appeals should be filed with the appropriate authorities as specified in para 62.01, otherwise, it will be deemed to have not been filed. However, the Supreme Court in the case of Assam Cooperative Sugar Mills v. Central Board of Excise and Customs decided to make over the appeal wrongly filed with the Collector of Central Excise, Shillong to the Appellate Collector of Central Excise, Calcutta, who was the appropriate authority". After referring to an order of the Appellate Collector, Bombay, the learned author observed "on the same analogy, if the appeal has been filed with the wrong authority but within time it should be made over to the appropriate authority and should be taken as having been filed within time, even though appeal to appropriate authority is filed subsequently". The learned author has cited the Government of India decision in Sainta Cement Works 1982 E.L.T. page 617 (G.O.I.).
12. The above passage undoubtedly supports the 'contention of Shri Majra. But then under the Civil Procedure Code, if a suit has been filed before a wrong Court, the plaint shall have to be returned to be presented to the Court in which the suit should have been instituted.
If the Board had adopted the procedure provided under Order VII Rule 10 of the Civil Procedure Code, then Board's action cannot be considered as improper or illegal. In the absence of a copy of the judgment of the Supreme Court, it would not be possible to hold that there is an obligation cast on the Board to forward the appeal records to the Tribunal's office. The Appellant has not been prejudiced by the action of the Board. The Board has returned the appeal papers to the Appellant's Counsel within a week after it received the papers. At best the Appellant could claim that the period spent in prosecution of the appeal before the Board shall have to be deducted for the purpose of computation of the limitation. Even if the said period is excluded, still there is an unexplained delay of 14 days.
13. On a careful consideration of all the matters, we are not satisfied that the Appellant was prevented by sufficient cause from presenting the appeal within the period of limitation. We, therefore, reject this application.