TaxTMI 
TaxTMI 
TaxTMI 
1990 (11) TMI 272
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....t 70%, auxiliary duty at 45% ad valorem and additional duty of 15% ad valorem and the applicants were called upon to pay Rs. 2,99,407/- as duty which the applicants have paid under protest. The speaking order was communicated to them on 7-3-1989. They preferred appeal before the learned Collector of Customs (Appeals) who passed the impugned order rejecting their appeal on 12-1-1990 which has been communicated to them on 15-2-1990. The applicants have preferred the appeal in this Tribunal on 24-8-1990. There is a delay of 99 days in this case. This application is filed seeking condonation of this delay on the grounds stated in the application which is supported by affidavit of Shri S. Subramaniam, Consultant - Managing partner of M/s. Exim Consultants who happened to be rendering the services as Consultants in regard to the matters relating and pertaining to Customs, Excise & Import of the applicant's company. 3. In the application, the applicants have stated that they had entrusted their matter to their Consultants namely Sh. R.H. Subbanaya and Sh. S. Krishnamoorthy who are on the panel of M/s. Exim Consultants. Sh. S. Subramaniyan is the Managing Director of the Consulting firm w....
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....at the delay was not caused on their account and delay should be condoned in the interest of justice. To this effect Shri Anil Mehra, Managing Director of the applicants company, has filed an affidavit. 4. Shri S. Subramaniyarn, Managing Director of Exim Consultants has filed an affidavit in support of the contentions of the applicants. They have submitted that they were able to trace the record on 19-8-1990 and they contacted the applicants on 20-8-1990 to inform them of the file having been traced. In the affidavit he has further stated that it was just a matter of incidence, that due to shifting of office on 3-5-1990 the file was mixed up and as such neither the appeal could be prepared nor the file could be handed over to the applicants. They have submitted that all these happenings are a matter of chance. Shri G.L. Rawal, Advocate appearing for the applicants, submitted that a delay of 99 days in filing the appeal has been caused due to reasons beyond the control of the applicants. It is a bona fide one and therefore, the applicants have given sufficient cause for seeking condonation in filing the appeal. He has relied upon the following rulings in support of his contentions ....
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....mediately as can be seen from the affidavit of the Consultant. When that be the case, the applicant cannot shift the blame to the Consultant. The Consultant has performed his part of duty and hence he cannot be said to have committed any latches or negligence. The question now is whether the applicant has taken sufficient steps to pursue his appeal after the date of expiry and what steps they have taken to obtain the certified copy. There is no explanation given at all by the applicant in making any effort to build the file. The appellant appears to have been approaching the Consultant time and again even after the expiry of the period in the hope that they would get the file to prefer the appeal. The proper step which should have been taken by them was to have re-constructed the file to prefer the appeal. The applicant having failed to do it cannot shift the blame to the Consultant and cannot also affirm that there has been no latches on their part. The fact that they had not taken any steps to re-build the file or to obtain the copy for 96 days clearly show that the applicant had not exercised due care and diligence in preferring the appeal. This Bench had condoned the delay in a....
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....rovided it is honest, though wrong. However, it cannot always be put in a straight jacket of general doctrine of invariable and universal application. In other words, it should not be an attempt to save limitation in an underhand way or an advice to cover ulterior purpose; (e) a litigent should not be easily permitted to take away a right which has accrued to his advisory by lapse of time; and (f) that proof of sufficient cause is a condition precedent for the exercises of the discretionary jurisdiction and that even after the sufficient cause is shown, a party is not entitled to the condonation of the delay in question as a matter of right and the Court of authority hearing the appeal has no power to extend the time as a matter of indulgence". 7. In the case of M/s. Shipping Corpn. of India Ltd. v. Collr. of Customs, reported in 1984 (18) E.L.T. 599, the Tribunal did not condone the delay on the ground of misplacement of papers and held it not to be a sufficient cause for condonation of delay. 8. In the case of Collector of Customs v. Indian Petro Chemical Corpn. of India reported in 1990 (47) E.L.T. 428, the Tribunal held that non-availability of the original records and the ....
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....ffort to obtain the certified copy to file the appeal. In this connection, he has also not satisfactorily explained in his affidavit the reason for delay. Therefore, we are constrained to dismiss the application for condonation of delay and as a consequence the appeal is also dismissed. 10. [Contra per : G. Sankaran, President]. - I have carefully read the order prepared by learned brother Shri Peeran but, to my regret, find myself unable to agree with it. I am of the opinion that on the facts and in the circumstances of the case, the delay in filing the appeal merits consideration. 11. The facts have been set out in detail in Shri Peeran's order. In the case of Chatterjee Energy Systems (P) Ltd. v. Collector of Cus. [1990 (47) E.L.T. 88 (Tri.)], the delay in filing the appeal was as much as 288 days. The contributing factor was explained as misplacement of the papers in the Advocate's office. The Department Representative had urged that the delay ought not to be condoned because there was nothing on record to show what efforts were made by the appellant-company in the intervening period either to pursue the matter with the advocate or to obtain copies of the impugned order and o....