Hemal Industries Vs. Collector of Customs - Court Judgment

Excerpt:
1. this is an appeal filed by m/s. hemal industries against the impugned order passed by the collector of customs (appeals), bombay.2. shri m.c. sharma, learned advocate, appearing for the appellants submitted that collector (appeals) was not right in dismissing the appeal as barred by time. he said that although the order of the assistant collector was dated 15-4-1986 but the same was communicated to the party after 26-4-1986 and if the date of communication is taken as 26-4-1986, the appeal was filed within six months from the date of the communication of the order. he said that the collector (appeals) has got a discretionary power to condone delay for a period of three months after the prescribed period of three months in terms of section 128 of the customs act. he submitted that party could not file an appeal within the stipulated time since no convering letter/preamble was supplied to the party to enable him to file appeal to the jurisdictional appellate authority.3. he also drew our attention to the application for condonation of delay accompanied by affidavit filed by the party before the collector (appeals) in which it was stated that instead of getting the covering letter intimating the party of his right of appeal and procedure thereof, the respondent sent a demand note and appellant entered in correspondence with the respondent as the appellant was not aware that the order passed by the respondent on 15-4-1986 was appealable.4. shri srivastava, learned departmental representative countering the arguments submitted that it is not clear from the records whether preamble was supplied or not and furthermore, non-supply of preamble/covering letter in the instant case is not a ground since the party has already filed an appeal against the earlier order passed by the assistant collector and the present order dated 15-4-1986 passed by the assistant collector is in pursuance of the demand order passed by the collector (appeals).5. we have carefully considered the matter. section 128 of the customs act reads as under :- (1) any person aggrieved by any decision or order passed under this, act by an officer of customs lower in rank than a collector of customs may appeal to the collector (appeals) within three months from the date of the communication to him of such decision or order : provided that the collector (appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. (2) every appeal under this section shall be in such form and shall be verified in such a manner as may be specified by rules made in this behalf." 6. as per proviso to section 128 of the customs act, it is clear that the collector (appeals) if he is satisfied that the appellant was prevented from sufficient cause from presenting the appeal within the period of three months, allow it to be presented within a further period of three months. in the instant case, it is clear from the record that the appeal was filed before him after a lapse of three months from the date of communication of order. even if it is accepted that the appeal was filed within the period of six months from the date of communication of the order, it was the duty of the appellant to explain by giving proper reason how he was prevented from filing the appeal within the stipulated period. to condone delay for further period of three months as per section 128, not only there must be a cause but it must be sufficient. in the instant case, reason given by the party to condone delay is that since covering letter/preamble was not supplied to the party which resulted in delay. sufficient cause is not shown either in the application or in the affidavit and date of events and when they came to know the order passed by the assistant collector is appealable. on the other hand, the order passed by the assistant collector for the same period with reference to the same issue has already been challenged by the party before the collector (appeals) and the assistant col-lector has passed a fresh order in pursuance of the directions given by the collector (appeals). in the facts and circumstances of the case, it is very difficult to appreciate the cause/reason given by the party that they were not aware of the fact that order passed by the assistant collector is appealable one.the legal maxim ignoratia juris non-excusat is clearly applicable to this case. taking over all facts and circumstances of the case, we do not find any infirmity in the order passed by the collector (appeals) holding that the appeal filed by the party before him was barred by time. in the view, we have taken, the appeal filed by the party is dismissed on this issue. ordered accordingly.

Judgment:
1. This is an appeal filed by M/s. Hemal Industries against the impugned order passed by the Collector of Customs (Appeals), Bombay.

2. Shri M.C. Sharma, learned Advocate, appearing for the appellants submitted that Collector (Appeals) was not right in dismissing the appeal as barred by time. He said that although the order of the Assistant Collector was dated 15-4-1986 but the same was communicated to the party after 26-4-1986 and if the date of communication is taken as 26-4-1986, the appeal was filed within six months from the date of the communication of the order. He said that the Collector (Appeals) has got a discretionary power to condone delay for a period of three months after the prescribed period of three months in terms of Section 128 of the Customs Act. He submitted that party could not file an appeal within the stipulated time since no convering letter/preamble was supplied to the party to enable him to file appeal to the jurisdictional Appellate Authority.

3. He also drew our attention to the application for condonation of delay accompanied by affidavit filed by the party before the Collector (Appeals) in which it was stated that instead of getting the covering letter intimating the party of his right of appeal and procedure thereof, the respondent sent a demand note and appellant entered in correspondence with the respondent as the appellant was not aware that the order passed by the respondent on 15-4-1986 was appealable.

4. Shri Srivastava, learned Departmental Representative countering the arguments submitted that it is not clear from the records whether preamble was supplied or not and furthermore, non-supply of preamble/covering letter in the instant case is not a ground since the party has already filed an appeal against the earlier order passed by the Assistant Collector and the present order dated 15-4-1986 passed by the Assistant Collector is in pursuance of the demand order passed by the Collector (Appeals).

5. We have carefully considered the matter. Section 128 of the Customs Act reads as under :- (1) Any person aggrieved by any decision or order passed under this, Act by an officer of Customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of the communication to him of such decision or order : Provided that the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.

(2) Every appeal under this Section shall be in such form and shall be verified in such a manner as may be specified by rules made in this behalf." 6. As per proviso to Section 128 of the Customs Act, it is clear that the Collector (Appeals) if he is satisfied that the appellant was prevented from sufficient cause from presenting the appeal within the period of three months, allow it to be presented within a further period of three months. In the instant case, it is clear from the record that the appeal was filed before him after a lapse of three months from the date of communication of order. Even if it is accepted that the appeal was filed within the period of six months from the date of communication of the order, it was the duty of the appellant to explain by giving proper reason how he was prevented from filing the appeal within the stipulated period. To condone delay for further period of three months as per Section 128, not only there must be a cause but it must be sufficient. In the instant case, reason given by the party to condone delay is that since covering letter/preamble was not supplied to the party which resulted in delay. Sufficient cause is not shown either in the application or in the affidavit and date of events and when they came to know the order passed by the Assistant Collector is appealable. On the other hand, the order passed by the Assistant Collector for the same period with reference to the same issue has already been challenged by the party before the Collector (Appeals) and the Assistant Col-lector has passed a fresh order in pursuance of the directions given by the Collector (Appeals). In the facts and circumstances of the case, it is very difficult to appreciate the cause/reason given by the party that they were not aware of the fact that order passed by the Assistant Collector is appealable one.

The legal maxim ignoratia juris non-excusat is clearly applicable to this case. Taking over all facts and circumstances of the case, we do not find any infirmity in the order passed by the Collector (Appeals) holding that the appeal filed by the party before him was barred by time. In the view, we have taken, the appeal filed by the party is dismissed on this issue. Ordered accordingly.