Collector of Customs Vs. G.T.N. Textiles Ltd. - Court Judgment

Excerpt:
1. in this appeal, which was received in the registry on 16-5-1986 in respect of; order-in-appeal dated 15-10-85, an application for condonation of delay has been filed along with the appeal. today, the said application has been listed for hearing and was taken up when shri j. gopinath, sdr is present for the collector (appellant) and shri s.subramaniyan, consultant for the respondent.2. the application for condonation has given dates as to the processing of the matter after the receipt of the order-in-appeal by the collector - appellant in this appeal. we, for the purpose of disposal of this application, take the dates as set out in the application, as the basis for disposing of the application. the learned sdr has also invited our attention to the various steps taken towards the filing of the appeal and also mentioned the additional reasons given towards the end of the application namely that since 37 separate appeals had to be filed by this collectorate each requiring paper books containing many exhibits and that the delay occurred due to dearth of staff.3. shri s. subramaniyan has pointed out that the total delay in filing the appeal is that of 84 days, if we take the starting point for limitation to be 12-11-1985, the date on which the collector is shown to have received the order-in-appeal. he has further pointed out that the collector's order for filing the appeal had been given on 20-12-1985 and the draft memorandum of appeal as well as draft sanction for appeal is shown to have been approved on 29-1-1986. even from that date there is delay of 106 days which delay according to him should not be condoned in any manner. the reason given, namely, preparation of other appeals also during the same period is no reason when it can be presumed that the collect-orate had enough staff to do the needful and that the office of the collectorate cannot be heard to say that they had paucity of staff. it is also pointed out that papers not being prepared is not a valid reason for taking so much time in filing the appeal when there was statutory requirement of time-limit for the purpose of filing of the appeal. paper books containing other documents and exhibits, could be filed subsequent to the institution of the appeals.4. we have given our very careful thought to the facts, as set out in the application for condonation of delay, and we regret to say that this betrays total lack of appreciation on the part of the concerned collector, as to the purport and import of the provisions, under which, this appeal has been filed. the said provisions are contained, so far as the collector of customs is concerned, in section 129a (2) of the customs act, 1962 which reads as under:- "the collector of customs may, if he is of opinion that an order passed by the appellate collector of customs under section 128, as it stood immediately before the appointed day, or the collector (appeals) under section 128-a, is not legal or proper, direct the proper officer to appeal on his behalf to the appellate tribunal against such order." 5. a reading of this section makes it manifest that it has to be the opinion of the collector of customs himself that the order passed by the collector of customs (appeals) was not legal or proper, and then on that opinion being formed, it is the collector who directs the proper officer to file an appeal on his behalf to the appellate tribunal against such order. in this case, a perusal of the dates given in the application betrays a total lack of appreciation on the part of the collector, as to the significance of this governing provision, which empowered him; "to direct filing of an appeal". we find, on the other hand, that the order-in-appeal in this case does not seem to have been perused by the collector before 20-12-1985, because right from the date of receipt in the custom house, which is given as 20-11-1985; first the appraising group in the review cell examined the issue, and then the appraiser gave his comments and after the examination of the appraiser's report by the assistant collector and deputy collector, which went on till 19-12-1985, that the file was put up to the collector and it was then that the collector gave the order to file the appeal. here, it is a case where there is an inordinate delay of 84 days in filing the appeal which we find no sufficient reason to condone because it is not possible to accept the plea that this appeal could not be filed because some other appeals had also be filed. besides that, we have already observed that the manner in which the office of the collector proceeded to process this appeal does not show that any ground has been made out for condonation of delay. we, therefore, do not feel inclined to grant the prayer for. condonation of delay and reject this application. the appeal, being barred by time is liable to rejection as having been filed beyond the statutory period of limitation. the appeal is also thus rejected. the cross objections filed by the respondent being cross objection no. c/cross/289/86-b.2 become infructuous, and may be filed.

Judgment:
1. In this appeal, which was received in the Registry on 16-5-1986 in respect of; Order-in-Appeal dated 15-10-85, an application for condonation of delay has been filed along with the appeal. Today, the said application has been listed for hearing and was taken up when Shri J. Gopinath, SDR is present for the Collector (Appellant) and Shri S.Subramaniyan, Consultant for the respondent.

2. The application for condonation has given dates as to the processing of the matter after the receipt of the Order-in-Appeal by the Collector - appellant in this appeal. We, for the purpose of disposal of this application, take the dates as set out in the application, as the basis for disposing of the application. The learned SDR has also invited our attention to the various steps taken towards the filing of the appeal and also mentioned the additional reasons given towards the end of the application namely that since 37 separate appeals had to be filed by this Collectorate each requiring paper books containing many exhibits and that the delay occurred due to dearth of staff.

3. Shri S. Subramaniyan has pointed out that the total delay in filing the appeal is that of 84 days, if we take the starting point for limitation to be 12-11-1985, the date on which the Collector is shown to have received the Order-in-Appeal. He has further pointed out that the Collector's order for filing the appeal had been given on 20-12-1985 and the draft memorandum of appeal as well as draft sanction for appeal is shown to have been approved on 29-1-1986. Even from that date there is delay of 106 days which delay according to him should not be condoned in any manner. The reason given, namely, preparation of other appeals also during the same period is no reason when it can be presumed that the Collect-orate had enough staff to do the needful and that the Office of the Collectorate cannot be heard to say that they had paucity of staff. It is also pointed out that papers not being prepared is not a valid reason for taking so much time in filing the appeal when there was statutory requirement of time-limit for the purpose of filing of the appeal. Paper books containing other documents and exhibits, could be filed subsequent to the institution of the appeals.

4. We have given our very careful thought to the facts, as set out in the application for condonation of delay, and we regret to say that this betrays total lack of appreciation on the part of the concerned Collector, as to the purport and import of the provisions, under which, this appeal has been filed. The said provisions are contained, so far as the Collector of Customs is concerned, in Section 129A (2) of the Customs Act, 1962 which reads as under:- "The Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Section 128, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 128-A, is not legal or proper, direct the proper officer to appeal on his behalf to the Appellate Tribunal against such order." 5. A reading of this section makes it manifest that it has to be the opinion of the Collector of Customs himself that the order passed by the Collector of Customs (Appeals) was not legal or proper, and then on that opinion being formed, it is the Collector who directs the proper officer to file an appeal on his behalf to the Appellate Tribunal against such order. In this case, a perusal of the dates given in the application betrays a total lack of appreciation on the part of the Collector, as to the significance of this governing provision, which empowered him; "to direct filing of an appeal". We find, on the other hand, that the Order-in-Appeal in this case does not seem to have been perused by the Collector before 20-12-1985, because right from the date of receipt in the Custom House, which is given as 20-11-1985; first the Appraising Group in the Review Cell examined the issue, and then the Appraiser gave his comments and after the examination of the Appraiser's report by the Assistant Collector and Deputy Collector, which went on till 19-12-1985, that the file was put up to the Collector and it was then that the Collector gave the order to file the appeal. Here, it is a case where there is an inordinate delay of 84 days in filing the appeal which we find no sufficient reason to condone because it is not possible to accept the plea that this appeal could not be filed because some other appeals had also be filed. Besides that, we have already observed that the manner in which the office of the Collector proceeded to process this appeal does not show that any ground has been made out for condonation of delay. We, therefore, do not feel inclined to grant the prayer for. condonation of delay and reject this application. The appeal, being barred by time is liable to rejection as having been filed beyond the statutory period of limitation. The appeal is also thus rejected. The Cross Objections filed by the respondent being Cross Objection No. C/Cross/289/86-B.2 become infructuous, and may be filed.