TaxTMI 
TaxTMI 
1990 (3) TMI 225
X X X X Extracts X X X X
X X X X Extracts X X X X
..... But title Reference Applications, which are captioned above as R.A. No. 11/88 and R.A. No. 12/88 were filed only on 13-10-1988 before the Tribunal and there was a delay of two days as they were filed beyond the statutory period of 60 days from the date of receipt of the orders of the Tribunal. 3. Reference Application 12/88 was filed for reference of certain questions of law to the Hon'ble High Court, arising out of the above-mentioned common order, as far as it relates to Appeal No. CD(CAL)-392/83. Reference Application No. 11/88 was filed for a reference of certain questions of law to the Hon'ble High Court, arising out of the aforesaid common order of this Tribunal, as far as it relates to Appeal No. CD(CAL)-393/83. Miscellaneous Application No. 214/88 was filed for condoning the delay of two days in filing R.A. No. 11/88 and Miscellaneous Application No. 215/88 was filed for condoning the delay of two days in filing R.A.12/88; before the Tribunal. 4. The above said Miscellaneous Applications viz. 214/88 and 215/88, for condonation of delay of two days in the respective Reference Applications, were filed by the learned J.D.R. Shri P.C. Jain, signed by him, without any ve....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In the case of M/s Metro Exporters Pvt. Ltd. (M.A.No. 43/89) the copy of the application bears the signature of the Collector without any date. 7. It was pointed out by the learned Advocate for the Respondent that in the case of M/s. Jayant Oil Mills Pvt. Ltd. (M.A.44/89), the application was shown to have been signed by the learned Collector on 13-9-1988, whereas it is evident that only on 4-1-1989, it was pointed out that till that date no application signed by Collector was filed. Hence it was pointed out that the application was antedated. 8. m the case of M/s. Metro Exporters Pvt. Ltd. (M.A. 43/89) the learned Advocates for the Respondents pointed out that the copy of the application bears the signature of Collector without a date and is also not verified. It was their contention that both these applications are not verified and they are no applications in the eyes of law and are liable to be dismissed in limine. 9. The above submissions were made on 17-4-1989 and the learned SDR prayed for time to seek certain clarifications and time sought for was granted and the cases were posted to 12m June, 1989. 10. In the meanwhile, the learned Collector of Customs signed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce, the applicants, by virtue of these two applications prayed for condonation of delay in filing these two Reference Applications as captioned above. 12. The learned Senior Departmental Representative Shri M.N. Biswas appearing along with Shri P.C. Jain, Junior Departmental Representative in the above-captioned applications contended before us that the Reference Applications mentioned below were prepared in time, but when it was sent for filing, the person concerned instead of filing it in the Registry of the Tribunal delivered it to the S.D.R.'s office, where it was received on 12-9-1988. It was further contended that since the concerned clerk had been transferred and no substitute provided, it remained to be brought to the notice of any gazetted officer. It was also contended that it was only on 13-10-1988 these applications were brought to the notice of the learned J.D.R. It was also brought to our notice that the learned J.D.R. prepared the condonation applications in both these cases on 26th October, 1988 and they were filed in the Registry on 31-10-1988. It was also contended that since both these applications were not filed by the applicant Collector, the defect was cur....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ri P.K Dutta in M.A. No. 215/88 (Collector of Customs v. Metro Exporters Pvt. Ltd), vehemently opposed the application on several grounds. 16. The learned Barrister, Shri S. Roy Choudhury contended that the first application for condonation of delay dated 26-10-1988 which was filed on 31-10-1988 signed by the learned J.D.R. Shri P.C. Jain is non est in law and the same is to be totally ignored. It was his contention that this application, not being signed by the applicant, who is the Collector of Customs, is non est in law. As far as the second application filed by the applicant Collector of Customs is concerned, it was his submission that it was not dated and was not even verified by the Collector and the same is not an application in the eyes of law. In this connection, he relied on a decision of the Supreme Court reported in AIR 1970 S.C. 652 (A.K.K. Nambiar v. State of Andhra Pradesh) wherein it was held that the importance of verification is to test the genuineness of the allegations and in the absence of such verification the facts averred in the affidavit cannot be relied upon. It was, therefore, submitted that this application is also to be ignored in toto. It was, there....
X X X X Extracts X X X X
X X X X Extracts X X X X
....condone the delay in filing the Reference Application he relied upon the following decisions:- (i) 1984 (16) E.L.T. 656; (ii) 1984 (18) E.L.T. 599 He further contended that the decision of the Supreme Court in Anantanag's case reported in 1987 (28) E.L.T. 185 (S.C.) is not applicable to the facts of this case. In such circumstances he stated that this application for condonation of delay be dismissed. 19. The learned Advocate Shri S.D. Nankani, appearing along with learned Advocate Shri V.S. Nankani for the respondent M/s Jayant Oil Mills Pvt. Ltd. in Miscellaneous Application No. 214/88 adopted the above arguments of Shri Roy Choudhury, learned Barrister. In addition, Shri Nankani contended that there are three different applications filed in this case. The first one is dated 26-10-1988 and the second was dated 13-9-1988 and the third one was dated 5th May, 1989. It was his contention that the first application dated 26-10-1988 is signed by the learned JDR Shri P.C. Jain and hence it is not an application in the eyes of law. As far as the second application is concerned it was his contention that the same is not verified and the date put on that application as 13-9-1988 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Customs, Madras). It was vehemently contended before us that the cause shown by the applicant is not a sufficient cause and in this connection he drew our attention to the principles of law laid down in the following decisions :- (i) 1988 (38) E.L.T. 739 (S.C.) - Union of India v. Tata yodogawa Limited (ii) 1988 (38) E.L.T. 712 - Collector of Central Excise v. F.G.P. Ltd. (iii) 1989 (41) E.L.T. 697 (S.B."B") - Collector of Customs v. Ajanta Tubes Ltd. (iv) 1988 (33) E.L.T. 110 (Tri.) = 1988 (14) ECR 121 - Collector of Central Excise, Bombay v. M/s. Caprihans India Ltd. 21. Shri Nankani contended before us that the application dated 5th May, 1989 is not a valid application, as the verification of the same is not in accordance with law. It was his contention that the person having direct knowledge of the facts should verify the application or the source of knowledge should be mentioned therein. He contended that the delay which occurred in the S.D.R.'s office was not in the direct knowledge of the applicant and the source of knowledge is not mentioned. He also stated that the learned S.D.R. or the learned JDR have not filed any affidavit or verified statement in this ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....period of thirty days provided in the proviso to Section 130 of the Customs Act, 1962. 25. As far as the first point is concerned it was vehemently contended before us by the learned Barrister Shri Roy Choudhury that a valid application for condonation of delay could have been filed within the further period of thirty days, as provided in the proviso to Section 130 of the Customs Act, 1962. It was pointed out that the only valid application in this case is dated 5-5-1989, which was filed in the Tribunal on 9-5-1989, after 209 days beyond the period of 60 days of the receipt of the order by the applicant and, therefore, the application is liable to be dismissed. 26. In order to appreciate the above contentions, we may quote the proviso to Section 130 of the Customs Act, 1962, which reads as follows:- "Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period herein specified, allow it to be presented within a further period not exceeding thirty days." 27. It is thus clear that if this Tribunal is satisfied that the Reference Applications could not be filed within six....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... But as far as the third application dated 9-5-1989 is concerned, both the Counsels contended that the same is not a properly verified application in consonance with law and, therefore, the same is liable to be rejected in limine. 29. In this connection, Shri Roy Choudhury, the learned Barrister placed reliance on a decision of the Supreme Court reported in A.I.R. 1970 SC 652 (A.K.K. Nambiar v. Union of India), wherein at Para-11 their Lordships held as follows :- "...... The appellant filed an affidavit in support of the petition. Neither the petition nor the affidavit was verified. The affidavits which were filed in answer to the appellant's petition were also not verified. The reasons for verification of affidavits are to enable the Court to find out which facts can be said to be proved on the affidavit evidence of rival parties. Allegations may be true to knowledge or allegations may be based on records. The importance of verification is to test the genuineness and authenticity of allegations and also to make the deponent responsible for allegations. In essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....himself or by anybody else who is fully posted with the facts and circumstances of the case. We would not regard an advocate's clerk as such a person. The necessity of affidavit by a proper person lies in fact that after all a Writ Petition is entirely decided on the basis of affidavit, filed by the parties and as such to assure the mind of the Court about the correctness of the averments made it would be justified in an affidavit from a person having full knowledge of the facts of the case. The normal rule of giving the best evidence, which is applicable in case of civil suits and criminal trials should apply, according to us, to Writ Petitions as well." 33. The principles laid down in the above said decision are to the effect that the verified application should be filed by the person having full knowledge of the facts of the case. If the person is not a person in the full knowledge of the facts of the case, he must state in the verified statement as to the source of knowledge through which he got the information, including the name of the informant and if it is through any document by describing the documents themselves, through which such knowledge was acquired. Here, in thi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplication and the same is thus maintainable. 35. Point No. (iii) - This takes us to the third and the most vital point which is to be decided in these two applications. In this regard it is for the applicant to show that he was prevented by a sufficient cause in filing these applications Within the prescribed period of 60 days. In this case, the delay involved is two days. The Reference Applications should have been filed before this Tribunal on 11-10-1988, whereas they were actually filed on 13-10-1988. In this behalf we are unable to accede to the contention raised on behalf of the respondents that the yardstick which is used in condoning the delay of appeals can not be used for condoning the delay in filing the reference applications, as they are only advisory in nature. Whether it is an appeal or Reference Application, what is to be decided in both cases are as to whether there was sufficient cause made out to condone the delay. There is no authority for the proposition that a stricter view is to be taken for condoning the delay in filing the Reference Applications on the ground that they are advisory in nature. So also the principles laid down by the Supreme Court and vari....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ling assistant. His explanation was duly considered by the S.D.R." 38. The short point, therefore, to be decided by us is whether the above facts constitute sufficient cause for the delay of two days in filing these Reference Applications. On this short point, elaborate arguments were canvassed on behalf of both sides and, therefore, we propose to deal with the same exhaustively. 39. The learned Barrister Shri Roy Choudhury relied on decision reported in 1984 (16) E.L.T. 656 (Shipping Corporation of India v. Collector of Customs) wherein the Tribunal held that mere misplacement of papers in the office of the appellant is not a sufficient cause as they have not acted with diligence and caution. But that decision is not applicable to the facts of this case. Here, the delay is attributable directly to the fact that there was a vacancy of the dealing assistant in the S.D.R.'s office and in his absence the said delay of two days took place. In the above said case the delay was for more than two days. This decision also could not take note of the later decision of the Supreme Court reported in 1987 (28) E.L.T. 185 (Mst. Katiji and Others). 40. Reliance was further placed on a de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to the facts of this case. 42. The learned Barrister Shri Roy Choudhury further relied on the decision reported in 1987 (31) E.L.T. 579 Collector of Central Excise, Coimbatore v. Ramakrishna Steel Industries, Coimbatore), wherein at Para 4 of the order, the Tribunal held as follows:- "The Tribunal cannot draw a line between the S.D.R. and the appellant Collector of Central Excise, Coimbatore. So far as the Tribunal is concerned they are one and the same agency. Delay on the part of the S.D.R. is delay on the part of the Collector of Central Excise. No affidavit was filed to explain the delay in filing the appeal. It is also not shown that the office of the S.D.R. was diligent in taking steps for filing the appeal before the proper authority after it was recovered by them or if no steps were taken in that direction the reasons for failure to do so." In that case there was no explanation furnished explaining the delay of 9 days in filing the appeal. In this case the delay in S.D.R.'s office was explained by the fact that the dealing assistant's post was vacant during the relevant time, which has been discussed in detail by us earlier. The promptness of the S.D.R.'s office in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....matic manner. (4) When substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. (5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. (6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." After laying down the general propositions as reproduced above, the Hon'ble Supreme Court held as follows :- "Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay." It is thus clear that sufficient cause is to be judged by the Tribunal by looking into the facts and circumstances of each individual case. But while so determining, the above said principles are to be adhered to. 45. But the learned Advocate Shr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to this case. In that case the details of administrative delay was not furnished. But in this case the details of the delay are furnished. However, in this case, Shri Nankani placed strong reliance on the observations of the Tribunal in the above-cited decision; after the Tribunal referred to the decision of the Supreme Court in Mst. Katiji's case, reported in 1987 (28) E.L.T. 185 and also the latest judgment in the case of Tata Yodogawa Ltd., reported in 1988 (38) E.L.T. 739 (S.C.). Referring to the latter decision, the Tribunal observed as follows :- "This is a three member Bench decision. The earlier decision of the Supreme Court is a two Judge Bench decision and even in the case of Mst. Katiji the Supreme Court did not overrule its earlier view in the case of Ramlal v. Rewa Coalfields reported in 1962 SC 361." It is true that in the Ramlal case cited above the Supreme Court held that when the period of limitation has expired the opposite party gets an accrued legal right which should not be light-heartedly disturbed. It is true that this principle was not overruled by the Supreme Court in the case of Mst. Katiji's case cited above. But it is equality true that this decisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the limitation period the beneficiary of an order acquires substantial right and the appellant is expected to explain each and every day's delay. The facts of the present case are similar to that of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) E.L.T. 739 (S.C.)." In that case the limitation expired on 16th September, 1988 and the appeal was filed on 12th October, 1988 and the facts revealed that there was negligence on the part of the applicant in filing the appeal and the applicant was taking up the filing of appeal very casually. Therefore, the delay was not condoned. But in this case the delay was only two days and the applicant was prompt in sending the applications for reference within the period of limitation and the delay in the SDR's office was explained in detail. In the above said decision the Tribunal held as follows:- "Till the last day of limitation the appellant is not expected to explain his conduct. After the expiry of the limitation period the beneficiary of an order acquires substantial rights and the appellant is expected to explain each and every day's delay." Thus, the delay of only two days was to be explained by the applicant which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it was necessary, nothing prevented the appellant from filing an appeal to the Tribunal in accordance with law. Besides, no particulars about these 9 months have been given. From the application, it appears that after reference for necessary reports had been made on 18-9-1986, the Deputy Collector (Technical) visited the respondents' unit on 14-10-1986. The appellant very well knew that even on this date, the appeal was barred by limitation by nearly four months and yet the appellant took 5 more months to file appeal to the Tribunal. We do not think that we would be justified in exercising our discretion in condoning this inordinate delay of more than months which is not explained much less satisfactorily by showing sufficient cause for the same." The facts of that case are completely different from the facts of this case. In that case, there was delay of 9 months in filing the appeal. No particulars of these 9 months were explained in the application. In that case, there was a decision taken first not to file an appeal. Then the Deputy Collector visited the respondents' premises on 18-9-1986, by which time the appeal was barred already by 4 months. Thereafter, after his visit i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase, inspite of an order passed by Collector to file Reference Application on 28-4-1984, but the same was filed by Assistant Collector only on 18-5-1984; which was received by Registry only on 25-5-1984 and the delay of 27 days was not at all explained. But in this case the delay of two days was explained properly. Thus, that decision will not help the case of the respondents in any way. 51. We may thus observe that the existence of sufficient cause for the delay in filing the applications differ from case to case. Each case is to be judged on the facts and circumstances prevailing thereon. In arriving at a conclusion, as to whether there was sufficient cause or not, the Tribunal has to apply its judicial mind to all the relevant facts and circumstances prevailing in the case, on hand, including the number of days of delay involved. Each case has got to be judged on its merits. In coming to that conclusion the principles laid down by the Supreme Court and various High Courts and the judicial pronouncements of the Tribunal have to be taken note of. The points to be taken into consideration are that after period of limitation in filing the application a legal right has accrued to ....