Collector of Customs Vs. Bombay Crown Industries - Court Judgment

Excerpt:
1. collector of customs, bombay, has filed an appeal being aggrieved from the order passed by the collector of customs (appeals) bombay. the said appeal was received in the registry on the 28th day of february, 1991. a notice of hearing dated 8th march, 1991 listing the matter for hearing for 14th may, 1991 was issued, and when the matter was called on the said date shri m.k. sohal, learned jdr, had appeared on behalf of the appellant and had made a request for adjournment to file a day-to-day chart for explanation in the delayed submission of the appeal and also to produce the original records. there was also a request from respondents for adjournment. in the interest of justice, the matter was adjourned for today.2. when the matter was called, shri s.k. roy, learned jdr, has appeared on behalf of the appellant. he makes a request for adjournment. shri devan parikh, learned advocate, who has appeared on behalf of the respondents, stated that he has come all the way from ahmedabad, and he opposed the request for adjournment. shri roy stated that on the last date of hearing the matter was argued by shri sohal, learned jdr, and as such, he could not file the papers.3. we have heard both the sides. the facts and circumstances of the case do not justify the grant of adjournment. hon'ble supreme court in the case of union of india v. vishveswara iron ltd. reported in 1988 (32) elt 458 : 1988 (19) ecr 568 (sc) : ecr c 1017 sc : ecr c cus 1315 sc had observed that, but, we do not see why any further time should be granted to the petitioners to file a supplement affidavit.after hearing both the sides, we do not find any justification for the grant of adjournment, and as such, we proceed to decide the same on merits. this tribunal had followed this decision in the case of collector of central excise v. f.g.p. ltd. . in view of the above discussion, we do not find any justification for the grant of adjournment, especially when one adjournment had already been granted, and the revenue has not taken any steps in gathering the necessary information and the revenue has taken the proceedings before the tribunal in the most casual manner.accordingly, we proceed to decide the condonation of delay application on merits.4. shri s.k. roy, learned sdr, reiterated the contentions made in the application for condonation of delay. he pleaded that the impugned order was received by the appellant on 12th november, 1990 and the appeal was filed on 28th day of february, 1990, and the last date for the filing of the appeal was 12th february, 1991. he pleaded that there is only fifteen days' delay in the filing of the appeal. he relied on a decision of the supreme court in the case of harsha tractors ltd. v.collector of customs reported in 1989 (24) ecc 347 and 1991 (34) ecr 574 (sc) : ecr c cus 1440 sc where delay of 104 days was condoned. shri roy pleaded that in the present matter there is a delay of just fifteen days, and as such, the delay may be condoned.5. shri devan parikh, learned advocate, who has appeared on behalf of the respondents, argued that the reasons given in the application for condonation of delay are not sufficient enough for the exercise of the discretion in condoning the delay. in support of his arguments, he relied on a decision of the supreme court in the case of union of india v. tata yodogawa ltd. reported in 1988 (38) elt 739 : 1988 (19) ecr 569 (sc) : ecr c 1269 sc wnere the hon'ble supreme court had held that inter-departmental communication was not a sufficient cause for condonation of delay. he pleaded the collector had issued the authorisation on 8th december, 1990 and thereafter there was negligence on the part of the revenue in the filing of the appeal, and it is not a fit case where the tribunal should condone the delay. shri parikh relied on following decisions: shri parikh pleaded for the rejection of the application for condonation of delay.6. we have heard both the sides and have gone through the facts and circumstances of the case. the facts of the case are disputed. there is a delay of 15 days. the learned sdr, shri roy, had cited the decision of the supreme court in the case of the harsha tractors ltd. v.collector of customs reported in 1989 (24) ecc 347 : 1991 (34) ecr 574 (sc) : ecr c cus 1440 sc. the tribunal had occasion to deal with the judgment of the hon. supreme court (harsha tractors ltd. v. cc) in the case of steel authority of india ltd. v. cc, calcutta in appeal nos.c/744/84-b2 to cd (sb)/747 p 84-b2 vide misc. order no. c/97 to 100/91-b2 and final order no. c/172 to 175/91-b2 dated 24th july, 1991.para no. 4 from the said judgment is reproduced below: 4. we have heard both the sides and have gone through the facts and circumstances of the case. shri d.n. mehta, the learned advocate, had relied on the following decisions:harsha industries ltd. v. collector of customs 3. collector of land acquisition anantnag and anr. v. mst. katijl and ors.harsha tractors ltd. v. collector of customs reported in 1989 (24) ecc 347, the delay was 104 days. the tribunal had declined to condone the delay on the ground that it was not essential because the appeal before the tribunal was a revision application filed before the central government which was later on transferred to the tribunal in terms of provisions of section 131b of the customs act, 1962 to be treated as an appeal and in that matter the discretion was with the central govt. to condone the delay up to six months and the delay was less than six months and the affairs of harsha tractors ltd. were looked after by shri cd. sharma, retired inspector, whose services were terminated on 4th december, 1981 whereafter he absented himself and handed over charge on 22nd december, 1981 to shri dp. garg, manager (purchase) and in january, 1982 shri d.p. garg learnt that there was no action taken. the hon'ble supreme court condoned the delay with following observations: having considered the order of the customs, excise & gold (control) appellate tribunal, we are of the opinion that perhaps there have been certain amount of laches on behalf of the appellant. taking, however, an overall view and having regard to the possibility of the condition prevailing at that point of time as urged by the counsel for the appellant before the tribunal, in the interest of justice, it will be right and proper to condone the delay in filing the revision application and order of tribunal is accordingly set aside. the appeal is allowed. the appeal has to be heard by the tribunal on the merits as expeditiously as possible.in the matter before us, there is no day-to-day chart and the grounds for condonation of the delay are very vague. hon. supreme court in the case of union of india v. tata yodogawa ltd. reported in 1988 (38) elt 739 had held that inter-departmental communication is not a sufficient cause for condonatio'n of delay. hon'ble supreme court in the case of ramlal and ors. v. rawa coalfields ltd. 12. it is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. the proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by section 5. if sufficient cause is not proved nothing further has to be done; the application for condonation of delay has to be dismissed on that ground alone. if sufficient cause is shown then the court to enquire whether in its discretion it should condone the delay. this aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. it cannot justify an enquiry as to why the party was sitting idle during all the time available to it. in this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under section 14 of the limitation act.state of west bengal v. the administrator, howrah municipality and ors. had held that the mere fact that the appellant is a state no superior treatment should be given. para no. 27 from the said judgment is reproduced below: 27. mr. d. mukherji, learned counsel, for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the government it is no doubt true that whether it is a government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. but it cannot also be gainsaid that the same consideration that will be show by courts to a private party when he claims the protection of section 5 of the limitation act should also be available to the state.in view of the above discussion, we follow our earlier decision in the case of steel authority of india limited v. collector of customs, calcutta, and we are of the view that it is not a fit case where we should exercise our discretion in condoning the delay in terms of provisions of sub-section (5) of section 129-a of the customs act, 1962. the appellant's plea for condonation of delay is rejected.7. since application for condonation of delay is rejected, we are also dismissing the appeal without going into the merits of the same as the same is hit by limitation. in the result, cod application as well as appeal are dismissed.

Judgment:
1. Collector of Customs, Bombay, has filed an appeal being aggrieved from the order passed by the Collector of Customs (Appeals) Bombay. The said appeal was received in the Registry on the 28th day of February, 1991. A notice of hearing dated 8th March, 1991 listing the matter for hearing for 14th May, 1991 was issued, and when the matter was called on the said date Shri M.K. Sohal, learned JDR, had appeared on behalf of the appellant and had made a request for adjournment to file a day-to-day chart for explanation in the delayed submission of the appeal and also to produce the original records. There was also a request from respondents for adjournment. In the interest of justice, the matter was adjourned for today.

2. When the matter was called, Shri S.K. Roy, learned JDR, has appeared on behalf of the appellant. He makes a request for adjournment. Shri Devan Parikh, learned Advocate, who has appeared on behalf of the respondents, stated that he has come all the way from Ahmedabad, and he opposed the request for adjournment. Shri Roy stated that on the last date of hearing the matter was argued by Shri Sohal, learned JDR, and as such, he could not file the papers.

3. We have heard both the sides. The facts and circumstances of the case do not justify the grant of adjournment. Hon'ble Supreme Court in the case of Union of India v. Vishveswara Iron Ltd. reported in 1988 (32) ELT 458 : 1988 (19) ECR 568 (SC) : ECR C 1017 SC : ECR C Cus 1315 SC had observed that, But, we do not see why any further time should be granted to the petitioners to file a supplement affidavit.

After hearing both the sides, we do not find any justification for the grant of adjournment, and as such, we proceed to decide the same on merits. This Tribunal had followed this decision in the case of Collector of Central Excise v. F.G.P. Ltd. . In view of the above discussion, we do not find any justification for the grant of adjournment, especially when one adjournment had already been granted, and the Revenue has not taken any steps in gathering the necessary information and the Revenue has taken the proceedings before the Tribunal in the most casual manner.

Accordingly, we proceed to decide the condonation of delay application on merits.

4. Shri S.K. Roy, learned SDR, reiterated the contentions made in the application for condonation of delay. He pleaded that the impugned order was received by the appellant on 12th November, 1990 and the appeal was filed on 28th day of February, 1990, and the last date for the filing of the appeal was 12th February, 1991. He pleaded that there is only fifteen days' delay in the filing of the appeal. He relied on a decision of the Supreme Court in the case of Harsha Tractors Ltd. v.Collector of Customs reported in 1989 (24) ECC 347 and 1991 (34) ECR 574 (SC) : ECR C Cus 1440 SC where delay of 104 days was condoned. Shri Roy pleaded that in the present matter there is a delay of just fifteen days, and as such, the delay may be condoned.

5. Shri Devan Parikh, learned Advocate, who has appeared on behalf of the respondents, argued that the reasons given in the application for condonation of delay are not sufficient enough for the exercise of the discretion in condoning the delay. In support of his arguments, he relied on a decision of the Supreme Court in the case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 : 1988 (19) ECR 569 (SC) : ECR C 1269 SC wnere the Hon'ble Supreme Court had held that inter-departmental communication was not a sufficient cause for condonation of delay. He pleaded the Collector had issued the authorisation on 8th December, 1990 and thereafter there was negligence on the part of the Revenue in the filing of the appeal, and it is not a fit case where the Tribunal should condone the delay. Shri Parikh relied on following decisions: Shri Parikh pleaded for the rejection of the application for condonation of delay.

6. We have heard both the sides and have gone through the facts and circumstances of the case. The facts of the case are disputed. There is a delay of 15 days. The learned SDR, Shri Roy, had cited the decision of the Supreme Court in the case of the Harsha Tractors Ltd. v.Collector of Customs reported in 1989 (24) ECC 347 : 1991 (34) ECR 574 (SC) : ECR C Cus 1440 SC. The Tribunal had occasion to deal with the judgment of the Hon. Supreme Court (Harsha Tractors Ltd. v. CC) in the case of Steel Authority of India Ltd. v. CC, Calcutta in Appeal Nos.

C/744/84-B2 to CD (SB)/747 p 84-B2 vide Misc. Order No. C/97 to 100/91-B2 and Final Order No. C/172 to 175/91-B2 dated 24th July, 1991.

Para No. 4 from the said judgment is reproduced below: 4. We have heard both the sides and have gone through the facts and circumstances of the case. Shri D.N. Mehta, the learned advocate, had relied on the following decisions:Harsha Industries Ltd. v. Collector of Customs 3. Collector of Land Acquisition Anantnag and Anr.

v. Mst. Katijl and Ors.Harsha Tractors Ltd. v. Collector of Customs reported in 1989 (24) ECC 347, the delay was 104 days. The Tribunal had declined to condone the delay on the ground that it was not essential because the appeal before the Tribunal was a revision application filed before the Central Government which was later on transferred to the Tribunal in terms of provisions of Section 131B of the Customs Act, 1962 to be treated as an appeal and in that matter the discretion was with the Central Govt. to condone the delay up to six months and the delay was less than six months and the affairs of Harsha Tractors Ltd. were looked after by Shri CD. Sharma, retired Inspector, whose services were terminated on 4th December, 1981 whereafter he absented himself and handed over charge on 22nd December, 1981 to Shri DP. Garg, Manager (Purchase) and in January, 1982 Shri D.P. Garg learnt that there was no action taken. The Hon'ble Supreme Court condoned the delay with following observations: Having considered the order of the Customs, Excise & Gold (Control) Appellate Tribunal, we are of the opinion that perhaps there have been certain amount of laches on behalf of the appellant. Taking, however, an overall view and having regard to the possibility of the condition prevailing at that point of time as urged by the counsel for the appellant before the Tribunal, in the interest of justice, it will be right and proper to condone the delay in filing the Revision Application and order of Tribunal is accordingly set aside.

The appeal is allowed. The appeal has to be heard by the Tribunal on the merits as expeditiously as possible.

In the matter before us, there is no day-to-day chart and the grounds for condonation of the delay are very vague. Hon. Supreme Court in the case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 had held that inter-departmental communication is not a sufficient cause for condonatio'n of delay. Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rawa Coalfields Ltd. 12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation of delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act.State of West Bengal v. The Administrator, Howrah Municipality and Ors. had held that the mere fact that the appellant is a State no superior treatment should be given. Para No. 27 from the said judgment is reproduced below: 27. Mr. D. Mukherji, learned Counsel, for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be show by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State.

In view of the above discussion, we follow our earlier decision in the case of Steel Authority of India Limited v. Collector of Customs, Calcutta, and we are of the view that it is not a fit case where we should exercise our discretion in condoning the delay in terms of provisions of Sub-Section (5) of Section 129-A of the Customs Act, 1962. The appellant's plea for condonation of delay is rejected.

7. Since application for condonation of delay is rejected, we are also dismissing the appeal without going into the merits of the same as the same is hit by limitation. In the result, COD application as well as appeal are dismissed.