1. This appeal is directed against the impugned order passed by the Collector of Customs, Calcutta, whereby he ordered for the confiscation of the imported goods namely polyester tow u/s 111 (d) and (m) of the Customs Act, 1962 read with Section 3(2) of the Import and Export (Control) Act, 1947 with an option to redeem the same on payment of a redemption fine of Rs. 1 lakh and also directing that these goods be classified and assessed to duty under Heading 56.01/04 of CET read with Notification No. 38/83 dated 1-3-1983 as amended and Auxiliary duty, C.V. duty etc. shall be payable as per law and also imposed a penalty of Rs. 5,00,000/-.
2. Facts so far as relevant for the purpose of this order are that the appellants have filed the present appeal against the Order-in-Original dated 13-9-1984 passed by the Collector of Customs, Calcutta, which was received in the Registry on 1-3-1985. In Column 2 of the Memo of appeal (EA 3 form) the appellants had stated the date of the impugned order as "September 13, 1984, as amended by Corrigendum dated December 10, 1984" and the date of communication of the said order in Column 3 as "Original Order communicated on September 13, 1984. Corrigendum amending order communicated on December 17, 1984". In Sub-section (3) of Section 129A of the Customs Act, 1962 a period of three months is provided for filing such appeal from the date on which the order sought to be appealed against is communicated to the party concerned.
Admittedly the appeal was filed by the appellants after the expiry of the said period of 3 months from the date of communication of the said order-in-original dated 13-9-1984 and no application was filed for condonation of delay alongwith the aforesaid appeal by the appellants.
However, in the memorandum of appeal (Statement of facts) the appellants stated as follows :- "26. However, on or about December 17, 1984 the appellants received a Corrigendum dated December 10, 1984 from the Assistant Collector of Customs, Special Investigation Branch, Calcutta whereby the first page of the said purported order dated September 13, 1984 was substituted and the appellant was informed that appeal against the said adjudication order dated September 13, 1984 lay before this Hon'ble Tribunal. A copy of the said Corrigendum dated December 10, 1984 is annexed her to and marked 'B'.
27. The appellant states that in view of the said corrigendum dated December 10, 1984 which was received by the appellant on the 17th December, 1984, as aforesaid, whereby the said purported order dated September 13, 1984 has been amended, the period of limitation for filing the instant appeal against the said purported order dated September 13, 1984 of the Collector of Customs as amended on 10th December, 1984 begins on and from 18th December, 1984." 3. On September 28, 1989 when the appeal in hand came up for hearing an objection was raised by the respondent that the period of limitation could not be computed from the date of the receipt of the corrigendum but should be computed from the date of receipt of the order itself and since no application for condonation of dealy in filing the appeal has been moved by the appellants, the appeal is liable to be dismissed as time-barred. Thereupon at the request of the learned counsel for the appellants an opportunity was given to the appellants for filing an application for condonation of delay and accordingly the captioned application for condonation of delay dated 6-11-1989 was filed inter alia stating that the impugned order dated 13-9-1984 was received by the appellants on Sept. 13, 1984 at their request. Thereafter the appellants on 21-9-1984 filed an application under Article 226 of the Constitution of India before the Hon'ble High Court at Calcutta challenging the legality and/or validity of the impugned order and prayed for a direction for clearance of the said goods and after hearing the parties the Court by its order dated 21-9-1984 directed the Customs Authorities to allow clearance of the goods upon certain terms.
Accordingly the appellants after complying with the terms and conditions imposed by the Court, obtained the delivery of the subject goods. It was further stated that on Dec. 17, 1984 the appellants received a corrigendum dated December 10, 1984 from the Collector of Customs, Calcutta whereby the preamble of the impugned order (first page of the impugned order) served on the appellants was substituted by another preamble. It was inter alia emphasised that in the earlier proforma in the impugned order it was mentioned that the appeal against the order-in-original lies before the Appellate Collector of Customs, Calcutta within three months from the date of its receipt but in the substituted preamble it was stated that any person aggrieved by the said order may under Section 129A of the Customs Act, 1962 file an appeal before this Tribunal. In para 6 of the application in hand it was further stated that "after release of the said goods sometime in the first week of December, 1984, the appellant's representative met their Solicitor who advised that an appeal against the said order dated September 13, 1984 may also be filed without prejudice to the rights and contentions in the said writ application. The said matters relating to Customs proceedings and the High Court proceedings were being looked after by Shri R.S. Agarwal, the Secretary of the appellant. The said Shri R.S. Agarwal was sick during the second and third week of December, 1984, and no step could be taken for filing the appeal during this period", and that he (Shri R.S. Agarwal) joined the office on or about December 24, 1984, and immediately thereafter he handed over the relevant papers to Shri A.K. Bhowmik, the appellant's Excise Consultant and who (Shri A.K. Bhowmik) in turn advised that since part of the said order dated September 13, 1984 was substituted by issuing the said corrigendum dated December 10, 1984 the effective date of communication of the said order for the purpose of computing the period of limitation for filing the appeal before this Tribunal would run from December 17, 1984 when the said corrigendum was received by the appellants. On the basis of the said legal advice, the appellants bona flde, filed their appeal on February 22, 1985. On these averments the appellants have prayed for condonation of delay in filing the appeal, if any.
4. At the time of hearing of the application Shri R.N. Bajoria, Sr.
Advocate also filed the affidavit of the said Shri A.K. Bhowmik, Consultant duly sworn on 2-2-1990 wherein he had stated that on perusal of the impugned order dated 13th September, 1984 and corrigendum dated 10th December, 1984, he advised the appellant company that the effective date of communication of the said order for the purpose of computing the period of limitation for filing the appeal before the Tribunal would run from 17th December, 1984 when the said corrigendum was received by the appellant company.
5. It was the contention of Shri R.N. Bajoria, learned counsel for the appellant that the period of 3 months prescribed under Sub-section (3) of Section 129A of the Customs Act, 1962 is to be computed from the date of communication of the corrigendum which is in the instant case is 17-12-1984 and if that is so, the appeal filed before this Tribunal was in time. Elaborating further he submitted that this was according to the legal advice given by their Consultant Shri Bhowmik, who is a Retired Collector of Customs and Central Excise department, as could be seen from his affidavit referred to above. In this premises he requested for the condonation of delay in filing the appeal and cited the case of Collector, Land Acquisition Anantnag v. MST. Katiji, 1987 (28) ELT 185 (SC).
6. In reply Shri L.C. Chakravarti, learned JDR while vehemently opposing the prayer for condonation of delay in filing the appeal contended that the statutory period of 3 months for filing the appeal is to be computed from the date of communication of the impugned order, which according to the appellant himself is 13-9-1984 and if so counted there is a delay of about-78 or 79 days in filing the appeal for which no sufficient cause has been shown by the appellant. Elaborating on his submission he submitted that before the amendment of the Finance Act, 1980, whereby the provisions for constituting this Tribunal were made, the order passed by the Collector of Customs was appealable to the Appellate Collector of Customs under erstwhile Section 129 of the Customs Act, 1962 and by the Finance Act, 1980, a new Chapter XV relating to appeals was incorporated in the Customs Act, 1962 and in the said new chapter, a new Section 129A was enacted providing for the appeal before this Tribunal against the order passed by the Collector of Customs. He highlighted that a preamble to the order-in-original is appended any for the guidance of the person aggrieved, regarding the filing of the appeal, time for filing the appeal etc. and in the instant case it appears that instead of the new Preamble and the old Preamble stating that the appeal lies to the Appellate Collector under Section 129 of the Customs Act, was used and subsequently by letter (Corrigendum) dated 19-12-1984 new Preamble was sent to the appellants stating that the appeal lies to this Tribunal. He stressed that the Preamble was not the part of the impugned order nor it was a statutory requirement but it was a sort of guidance to the aggrieved person and to buttress his submission he referred to the meaning of the Preamble given in 'Words and Phrases (Permanent Edition). He also vehemently contended that the whole story that Shri R.S. Agarwal, Secretary of the appellant company fell sick during the 2nd and 3rd week of December ,1984 and that after recovery he joined the office on or about December 24, 1984 and handed ever the relevant papers to Shri A.K. Bhowmik, who in turn advised that the limitation would run from December 17, 1984 when the said corrigendum was received by the appellant is a cooked up story. No medical certificate regarding the said illness of Shri R.S.Agarwal was ever filed and therefore, this cannot be believed as pointed out by this Tribunal in the case of Mahabir Metal Convenors v.Collector, 1986 (24) ELT 39 (Tribunal). He stressed that the said Shri R.S. Agarwal has also not filed any affidavit regarding his illness or to substantiate the alleged contention of the appellant that he was the only person who was looking after the present case. As regards the affidavit of Shri A.K. Bhowmik, Consultant, he submitted that in the Memo of appeal as stated above the appellant never stated that they consulted the said Shri A.K. Bhowmik for filing the present appeal, who in turn opined that the limitation would be computed from the date of communication of the corrigendum. He also submitted that the said affidavit of Shri A.K. Bhowmik is also vague. It does not say as to who on behalf of the appellant company contacted him and further that it also does not say as to when he was contacted. To top his arguments he submitted that the said advice of Shri A.K. Bhowmik is of no help to the appellant inasmuch as according to the averments made in paragraph 7 and 9 of the instant application for condonation of delay the relevant papers were handed over by Shri R.S. Agarwal to the said Shri A.K. Bhowmik only on or about 24-12-1984 and. thereupon Shri A.K.Bhowmik advised them as aforesaid. This according to the learned JDR was itself done after the expiry of the statutory period of limitation of three months, which expired on 14-12-1984. In a nutshell his submission was that any advice sought or received after the expiry of the statutory period of limitation for filing the appeal is of no consequence. On this premises he submitted that the application for condonation of delay is liable to be rejected and cited the case of Union of India v. Tata Yovogawa Ltd. -1988 (38) ELT 739, wherein the application for condonation of delay was rejected by the Apex Court.
7. Before we consider the rival contentions raised by the parties, it may be stated at the outset that during the course of the hearing we enquired from Shri Bajoria, learned counsel for the appellants about the fate of the said Writ Petition filed in the Calcutta High Court and also as to whether any appeal was filed by the appellants before the Appellate Collector against the impugned order as mentioned in the Preamble to the impugned order and if so, whether it was filed within 3 months from the date of communication as in the instant case the corrigendum was received by the appellants on 17-12-1984 i.e. to say after the expiry of the period of three months. In reply Shri Bajoria informed that the said Writ Petition is still pending in the Court and no appeal was filed before the Appellate Collector as mentioned in the Preamble to the impugned order before the Appellate Collector.
8. Now the question before us is as to whether the limitation of three months is to be counted when the corrigendum dated 10-12-1984 was communicated or received by the appellant on or about 17-12-1984? If not, whether the appellant succeeded in satisfying that there was a sufficient cause for delay in filing the appeal.
9. As regards the first whether the period of limitation of three months for filing the appeal is to be counted from the date when the impugned order was communicated to the appellants on 13-9-1984 or from the date when the corrigendum dated 10-12-1984 was received by the appellants on or about 17-12-1984 the law, in our opinion, is very clear. Under Sub-section (3) of Section 129-A of the Customs Act, 1962 appeal had to be filed within three months from the date on which the order sought to be appealed against is communicated to the party. In the instant case admittedly the impugned order was communicated to the party on 13-9-1984. The contention of the learned Counsel for the appellant that since in the Preamble to the order-in-original dated 13-9-1984 it was stated that appeal lies to the Appellate Collector but by corrigendum dated 10-12-1984 the said Preamble was substituted by stating that appeal lies before the Tribunal and, therefore, the period of limitation is to be counted from the date of the communication of the corrigendum appears to be attractive at the first blush but a little probe in the matter may prove the fallacy in the argument. For admittedly Preamble to the order-in-original passed by the Collector (Appeals) was not a legal requirement not it was a part of the adjudication order. Moreover, in the Preamble the period of limitation of three months was indicated for filing the appeal but instead of stating the right forum for filing the appeal wrong forum was mentioned. That is to say, instead of mentioning that the appeal lies to this Tribunal it was stated that the appeal lies to the Appellate Collector. It is admitted to the appellant that no appeal was filed within the said period of three months before the Appellate Collector of Customs, Calcutta. It is significant to note that according to the appellant itself immediately on receipt of the impugned order on 13-9-1984 the appellant took up the matter in the Calcutta High Court for filing a Writ Petition on 21st Sept., 1984 and got the release order on the same date on certain terms and ultimately got the release of the subject goods in the first week of Dec., 1984 and their Solicitor advised that the appeal against the impugned order dated Sept. 13, 1982 may also be filed without prejudice to the rights and contentions in the said writ petition (see paragraphs 4, 5 and 6 of the application for condonation of delay). In other words according to the appellant itself its Solicitor advised it to file the appeal in the first week of Dec., 1984 that is to say within three months prescribed for filing the appeal but the appellant did not file any appeal.
Needless to say that even in Civil Court when the decree is amended or corrected in respect of unsubstantial matters, the amendment of decree did not give fresh starting point of time for appeal see Ram Singh v.Rome Bai, AIR 1968 MP 220; Harvilash v. Kanhaiya Lal, AIR 1968 MP 72.
For, it is not every amendment that is made in a decree which entitles a party who prefers an appeal against a decree to claim an extention of time. However, if the decree is substantially amended the position may be different. But in the instant case such situation is not available for, the order-in-original was never amended and what was substituted by the corrigendum was the Preamble wherein it was stated that appeal lies to the Tribunal. It may be noted that by this corrigendum the period of limitation as originally mentioned in the Preamble was not amended. Thus we hold that the period of limitation of three months is to be computed from the date when the impugned order was communicated to the appellant on 13-9-1984.
10. As regards the question as to whether the appellant succeeded in satisfying that there was sufficient cause in not presenting the appeal in time it may be stated that the appellant has miserably failed to prove that it was prevented from filing the appeal within time or there was sufficient cause for such delay. The appellant has attempted to prove the said delay by stating in para 6 of its application firstly that after the advice of the Solicitor that the appeal can also be filed without prejudice to the rights and contentions in the pending writ petition, Shri R.S. Agarwal who was looking after the Customs proceedings and High Court proceedings was sick during the second and third week of Dec., 1984 and no step could be taken for filing the appeal during this period and secondly that immediately after he (Shri R.S. Agarwal) joined the office on or about Dec. 24, 1984 he handed over the relevant papers to Shri A.K. Bhowmik, Excise Consultant who in turn advised that effective date of communication of the impugned order for the purpose of computing the period of limitation for filing the appeal would run from Dec. 17, 1984 when the corrigendum dated 10-12-1984 was received by the appellant. Hence the appellant acted on the said legal advice and filed the appeal on 22nd Feb., 1985 believing it to be a bona fide advice.
11. As regards the contention that the appeal could not be filed within time because Shri R.S. Agarwal was looking after the Customs proceedings and High Court proceedings and that he was sick during the 2nd and 3rd week of December, 1984 and, therefore, no steps could be taken for filing the appeal during this period and immediately after his joining the office on or about Dec., 24 the papers were handed over by him to Shri A.K. Bhowmik it may he stated that it has no force.
Besides the fact that these averments that Shri R.S. Agarwal was sick during the 2nd and 3rd week of Dec., 1984 and immediately after he joined the office on or about 24-12-1984 he handed over the papers to Shri A.K. Bhowmik are vague, we note that no such ground of the alleged illness of Shri R.S. Agarwal was taken in the memo of appeal as could be seen from paras 26 and 27 (statement of facts of the memo of appeal extracted above). It is further significant to note that no affidavit of Shri R.S. Agarwal in support of the alleged illness or that he resumed the duty on or about Dec. 24, 1984 was filed. Even no record was produced to show that the said Shri R.S. Agarwal was ever on leave during the said period. In other words it is only for the first time that alleged illness of the said Shri R.S. Agarwal was taken as a ground for condonation of delay after a lapse of about five years when an objection was raised by the respondents that appeal was time-barred.
In these circumstances we hold that the appellants had failed to prove the alleged illness of the said Shri R.S. Agarwal.
12. As regards the contention of the appellant that immediately after joining of his duties by the said Shri R.S. Agarwal on or about Dec.
24, 1984 he handed over the relevant papers to Shri A.K. Bhowmik and advised that the limitation for filing of appeal would be counted from Dec. 17, 1984 when the said corrigendum was received, it may be stated that it also does not advance the case of the appellant further for, according to the appellant itself the impugned order was communicated to it on 13-9-1984 and the period of three months prescribed for filing the appeal as stated above expired on 13-12-1984 and the papers were handed over to the said Shri A.K. Bhowmik on or about Dec. 24, 1984 that is to say after the expiry of the period of limitation. It is settled law that no event or circumstance arising after the expiry of limitation can constitute sufficient cause. See Ajit Singh v. State of Gujarat, AIR 1981 SC 733 wherein it was held that "6...Now it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation. In the present case, there was no such cause and the High Court erred in condoning the delay." 13. To this it may be added that according to the appellant itself the papers were handed over to Shri A.K. Bhowmik on or about Dec. 24,1984 and the appeal was received in the registry on 1-3-1985. In the application for condonation of delay it is nowhere stated as to on what date the said Shri Bhowmik advised that the limitation would be computed from Dec. 17, 1984 when the corrigendum was received. It is amusing to note that in his affidavit Shri A.K. Bhowmik has also not stated as to when the impugned order was handed over to him for advice or when he gave the advice. The date on which Shri A.K. Bhowmik advised the appellant as aforesaid was material for appreciating the contention of the appellant because the position in law is quite clear that the explanation must cover the whole of the period of delay and sufficient cause has to be explained for not filing the appeal on the last date of limitation and thereafter day by day till the actual filing of the appeal, See Ramlal v. Rewa Coalfields, AIR 1962 SC 361 i. e. a litigant who is not vigilant about his rights must explain every day's delay. In other words, he will have to prove that he was diligent and will have to explain day to day delay from the last day of limitation. See B.B.Ghoshal v. Shew Kamal Singh, AIR 1984 Cal. 122; Union of India v.Vishnu Agencies, AIR 1985 Cal. 150 and that the plea of wrong advice said to have been given by a Counsel should not be an attempt to save limitation in an underhand way or a device to cover an ulterior purpose. See State of Assam v. Naresh Chandra, AIR 14. In view of the above we hold that the appellant was not diligent and it failed to prove sufficient cause for delay in filing the appeal.
15. Before we part it may be stated that we have kept in mind the ratio of the case law cited at the Bar while passing this order.
16. In the result the application for condonation of delay is rejected.
Consequently the appeal is also rejected as time-barred without hearing the parties on merits of the case.