TaxTMI 
TaxTMI 
1986 (7) TMI 257
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.... dismissed). Member Shri Gulati however held that the delay in all the five cases should be condoned. 2. In view of the difference in opinion, these matters have been referred to me as President for decision in terms of sub-section (1) of Section 35D of the Central Excises and Salt Act, read with the proviso to sub-section (5) of Section 129C of the Customs Act. Hearing on these matters took place on 25-6-1986, when Shri B.R. Tripathi, SDR, appeared for the applicant Collector, and Shri A.N. Haksar, with Miss Nisha Srivastava, advocates, appeared for the respondents. After hearing both sides, orders were reserved. Shri Haksar was requested to file copies of certain judgments relied upon by him. This has since been done. 3.  The facts of the case have been set out in detail in the orders of the two learned Members. It is therefore not necessary to recapitulate them. 4. On behalf of the applicant Collector, Shri Tripathi referred to the relevant dates. He submitted that the appeals had been dispatched by registered post on 28-11-1985. They should have been received by 2-12-1985, but were received only on 4-12-1985. He stated that normally the postal transit sh....
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....or want of bona fides was imputable to the appellants. He submitted that in the interests of substantial justice the delay in this case should be condoned. Shri Tripathi also cited a judgment of the Hon'ble Supreme Court in the case of State of Uttar Pradesh v. Bahadur Singh & Others (1983 ECR 1556D). In this case the High Court had dismissed a writ petition under Articles 226 and 227 of the Constitution on the ground of delay. The Hon'ble Supreme Court reversed the decision of the High Court, observing inter alia that in such a case no period of limitation had been prescribed. (That decision is not relevant to the present case.) 9.  Finally, Shri Tripathi referred to the decision of the Tribunal in the case of Collector of Customs, Bombay v. Godrej Soap Ltd. (1985 (21) E.L.T. 529). In that case the Tribunal had condoned the delay. In arriving at this decision the Tribunal had observed that no special indulgence could be shown to the Government which in similar circumstances was not to be shown to any individual suitor. At the same time, taking a practical view of the working of Government without being unduly indulgent, it was held that on the facts of the case the delay i....
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....ld not imply that the merits of the case should not be excluded from consideration. Shri Haksar reiterated that the merits should not be taken into account for the purpose of deciding the question of limitation. 14. Shri Haksar submitted that the case was squarely covered by the decision of the Hon'ble Orissa High Court in the case of Brajabandhu Nanda v. Commissioner of Income-tax, Bihar & Orissa [1962 (44) ITR 668]. In that case, which arose out of the Indian Income-tax Act, 1922, appeals to the Income-tax Appellate Tribunal (ITAT) were sent by registered post from Cuttack on 2-4-1954 and received in Bombay on 7-4-1954. This was one day after the expiry of the limitation period of 60 days prescribed by Section 33 of the Indian Income-tax Act. An application for condonation of delay was made to the ITAT. The ITAT held that there was no sufficient cause shown to the delay and dismissed the appeals as time-barred. The matter went up in reference to the Orissa High Court. The High Court observed that the assessee did not appear to have explained why he waited for 56 days after he received the order of the Appellate Assistant Commissioner and that he appeared to have no justif....
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....ited the High Court's judgment in the case of Kella Appalaswamy and Sons v. Commissioner of Income-tax, Orissa reported in 1977 (106) ITR 487. In this case it had been held that anusual postal delay could be a ground for condonation. However, in the cases before us there was no unusual delay. Since this judgment was delivered on 4-12-1975, it could be taken as an authority to the effect that only unusual postal delay could be a ground for condonation. 20. Shri Tripathi replied that each case had to be considered on its own merits. For the reasons already given, he submitted that in the present cases condonation was merited and should be given. 21. I have carefully considered the views of the two learned Members who heard these matters at the initial stage, as well as the submissions of the learned representatives of both sides. 22. The basic facts are that these appeals were dispatched (using that term to cover the handing over of the communication to the post office for transmission by Registered Post) 5 days before the expiry of the limitation period. They reached the office of the Tribunal on the 7th day, that is, two days after the expiry of the normal p....
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....ever, the Tribunal held that the postal delay could not be the sufficient cause for condoning the delay in filing of the appeal, and dismissed it as barred by limitation. On a reference made to the Orissa High Court, the Hon'ble High Court held that the ITAT had failed to exercise its jurisdiction to condone the delay when there was sufficient cause. The High Court referred to its previous decision in the case of Brajabandhu Nanda, on which the ITAT had placed reliance on coming to its conclusion. The High Court observed that the answer rendered by the earlier full bench, namely that the delay in postal delivery could not be considered as constituting sufficient cause for not presenting the appeals within the prescribed period, was in the facts and circumstances of the earlier case. Referring to the facts of the case before it, the High Court observed that, where an assessee transmitted the appeal 9 days before limitation was to set in, in the facts of the case, it could not be said that there was any negligence or default on the part of the assessee. It held that the postal delay in this case was of an unusual type and could not be taken to be an event of the ordinary run. If ITAT....
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....conclusion reached on the facts and in the circumstances of that case." There is no reference in this judgment to the judgment of the Hon'ble Supreme Court in the Ramlal case and therefore this judgment cannot be cited as an authority for taking a view different from that of the Hon'ble Supreme Court. In any event, the Tribunal is bound by the judgment of the Hon'ble Supreme Court. But the whole tenor of the Orissa High Court judgment in this case was against the application of limitation. This may also be seen from the following observations at the end of the judgment :- "It must always be remembered as was pointed out by Lord Buck master in Montreal Street Railway Company v. Normandin - (1917) AC 170 (PC) that all rules of this type are nothing but provisions intended to secure proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose. In the case of State of Gujarat v. Ramprakash P. Puri - (1970) 2 SCR 875 (SC), the Supreme Court pointed out that procedure is the hand-maid and not a mistress of law, intended to subserve and facilitate the course of justice and not to govern or obstruct it. Like all ru....
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....y have expected that they would reach the Tribunal within the period of limitation, has to be decided on the basis of commonsense and everyday experience. Fortunately this is a matter where even the ordinary layman can claim some experience. 33. In the present case, the appeals were handed over to the postal department at Bhubaneswar ("dispatched") on 28-11-1985. If they had been delivered to the Tribunal Office in New Delhi on 2-12-1985, i.e. the 5th day starting from 28-11-1985, they would have been taken as being within time. They were actually delivered on the 7th day. Shri Tripathi stated at the outset that the normal period of postal transit was 5 or 6 days. He later amended this to say that the appeals could have been delivered in 5 days. There is no particular basis for either of these figures of 5 or 6 days. The condonation application does not refer to any normal transit period. The question regarding the time normally taken by articles in postal transit is one where even a layman can claim to speak with some experience. It appears to me that when it comes to sending an article from a State capital to the Union capital, an official might be justified in assuming t....
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.... such a situation is obviously not possible. At the same time, if the admission or otherwise of an appeal were to depend only on what must necessarily be a fairly subjective estimate, the resulting position cannot be considered as satisfactory. Fortunately one is not left wholly without guidance in such a situation. As mentioned in para 13 above, in the case of Ramlal v. Rewa Coalfields Ltd. where the subject has been dealt with extensively, the Hon'ble Supreme Court has endorsed the principle that the words "sufficient cause" ought to receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant. Therefore the authority which is called upon to condone delay has also to consider whether its decision is such as to advance substantial justice, provided of course there is no negligence etc. If "substantial justice" is a material consideration when construing "sufficient cause", the nature of the case and consequences of refusing to condone delay would necessarily have to be taken into account by the deciding authority. Factors such as the monetary stakes involved and the importance of the issue r....