TaxTMI 
TaxTMI 
2001 (9) TMI 102
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....ere covered by Tariff Heading 8523.90. The Customs Authorities were of the view that there was discrepancy in the description of the goods and the same was not complete. The cassettes were of professional grade and consequentially more expensive. Investigation into the matter was carried out and the petitioner was asked to state whether the cassettes were VHS, Betacam, etc. and also to indicate the width of the same. Petitioner submitted that the video cassettes were of VHS type and the width of each cassettes was 12.50 mm and of 180 minutes duration. The Customs Authorities did not accept petitioner's stand and the articles were seized under a reasonable belief that those were liable for confiscation under Section 111(d) of the Act. Petitioner requested the Commissioner of Customs, Custom House, Madras for waiver of show cause notice and prayed for a personal hearing in the matter. Accordingly personal hearing was granted. Petitioner's stand was that no specific licence was required for import of blank video cassettes. However, rejecting the submissions and contentions of the petitioner, the Commissioner passed an order on holding that the import of goods in question is restricted....
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....der can only be assailed before the Apex Court under Section 130E of the Act and the writ petition is therefore not maintainable. According to him, dismissal of the application for condonation of delay is really an order in terms of Section 129B of the Act and therefore the order can only be assailed in an appeal to the Supreme Court. Strong reliance is placed on the decision of the Apex Court in Mela Ram and Sons v. Commissioner of Income-tax [(1956) 29 ITR 607 (SC)]. Additionally, it is submitted that the Tribunal on facts has come to hold that there was no justifiable reason to condone the delay. This is essentially a finding of fact arrived at by taking into consideration relevant materials and while exercising jurisdiction under Article 226 of the Constitution it is not permissible to hold the order to be illegal. Responding to the challenge regarding maintainability, learned Counsel for the petitioner submitted that the provisions, which were under consideration in Mela Ram's case (supra), are entirely different and the decision has no application to the facts of the case. It is also submitted that the rule relating to exhaustion of alternative remedy is not invariable in nat....
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....apter X, and the rules made thereunder; Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) the value of the goods confiscated without option having been given to the owner of the goods to pay a fine in lieu of confiscation under section 125; or (ii) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of customs or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (iii) the amount of fine or penalty determined by such order, does not exceed Fifty thousand rupees. Every appeal against1A any order of the nature referred to in the first proviso to sub-section (1), which is pending immediately before the commencement of section 40 of the Finance Act, 1984 before the Appellate Tribunal and any matter arising out of or connected with such appeal and which....
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....ed to in sub-section (2) or a memorandum of cross objections referred to in sub-section (4)." Section 129B deals with orders of Appellate Tribunal and reads as follows : Orders of"129B. Appellate Tribunal - The Appellate Tribunal may, after giving the(1) parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary." Section 130E on which strong reliance has been placed by the respondents relates to appeal to the Supreme Court and reads as follows : "130E. Appeal to the Supreme Court - An appeal shall lie to the Supreme Court from - (a) any judgment of the High Court delivered on a reference made under section 130 in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after the passing of the judgment, the High Co....
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....ection 23 or section 26A or to make a fresh assessment under section 27, (c) confirm such order, or cancel it and direct the Income-tax Officer to register the firm or to make a fresh assessment, as the case may be, or, in the case of an order under sub-section (2) of section 25 or sub-section (1) or section 23A, or sub-section (2) of section 26 or sections 48, 49 or 49F, (d) confirm, cancel or vary such order, or in the case of an order under sub-section (1) of section 25A, (e) confirm such order or cancel it and either direct the Income-tax Officer to make further inquiry and pass a fresh order or to make an assessment in the manner laid down in sub-section (2) of section 25A, or, in the case of an order under section 28 or sub-section (6) of section 44E or sub-section (5) of section 44F or sub-section (1) of section 46, (f) confirm or cancel such order or var....
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....und of limitation would be one under Section 31 and would be appealable under Section 33 and the result will be the same even when the appeal is admitted without any order of condonation under Section 30(2). This view was reflected in Commissioner of Income-tax v. Mysore Iron & Steel Works [(1949) 17 ITR 478]; K.K. Porbunderwalla v. Commissioner of Income-tax [(1952) 21 ITR 63]; Champalal Asharam v. Commissioner of Income-tax [(1953) 23 ITR 464]. The High Court of Allahabad also took the same view in Shivnath Prasad v. Commissioner of Income-tax [(1935) 3 ITR 200]; The Municipal Board, Agra v. Commissioner of Income-tax [(1951) 19 ITR 63] and Mohd. Naim Mohd. Alam v. Commissioner of Income-tax [(1951) 19 ITR 58]. Similar view was expressed by the Punjab High Court in Dewan Chand v. Commissioner of Income-tax [(1951) 20 ITR 621]. 7.The appeal before the Apex Court in Mela Ram's case (supra) was founded on the judgment where Dewan Chand's case (supra) was relied upon. But the Punjab High Court took a different view in General Agencies (India) Ltd. v. Commissioner of Income-tax [(1956) 29 ITR 596]. The Madras High Court had held that an order declining to excuse the delay and rejec....
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....e of law, though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine. There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, section 28 of the Limitation Act; but there is none such here. On the other hand, in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately under section 30(2), the legislature has evinced an intention to maintain the distinction well-recognised under the general law between what is a substantive right and what is a matter of procedural law. In Nagendranath Dey v. Suresh Chandra Dey, Sir Dinshaw Mulla construing the word "appeal" in the third column of article 182 of the Limitation Act observed : "There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary expectation of the term and that it is no less an appeal because it is irregular or incompetent." ....
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....19 STC 144 = AIR 1967 SC 681], the Apex Court observed that the doctrine of merger was not a doctrine of rigid and universal application. The application of the doctrine depends on the nature of the Appellate or revisional order in each case and the scope of the statutory provision conferring the Appellate or revisional jurisdiction. Basically, therefore, unless the Appellate Authority has applied its mind to the original order or any issue arising in appeal while passing the Appellate order, one should be careful in applying the doctrine of merger to the Appellate order. The view was again reiterated in State of Orissa and Others v. Krishna Stores [(1997) 104 STC 594]. 11.In Rani Choudhury v. Lt. Col. Suraj Jit Choudhury [AIR 1982 SC 1397], the following observations are of great significance : An"14. appeal may be disposed of on various grounds. It may be disposed of after proper hearing on merits and this is usually the normal way of disposal of an appeal. An appeal may be disposed of also for non-prosecution thereof. Though the disposal of the appeal on the ground of non-prosecution of the same is not disposal of the appeal on merits, yet the dismissal of the appeal for n....
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....onclusions unless perverse are not available to be interfered with by any exercise of jurisdiction under Article 226 of the Constitution. At the same time it has to be borne in mind that liberal approach is to be adopted while dealing with an application for condonation. Learned Counsel for the respondent referred to the facts in the instant case showing there are no extenuating circumstances to adopt a liberal view. In Courts where British jurisprudence prevails statutes of limitation are jurisprudential necessities. Limitation is said to be "a statute of repose". Corpus Juris Secundum, Vol. 53 at Page 901 : "Statutes of limitation are statutes of repose, the object of which is to suppress fraudulent and stale claims from springing up at great distance of time and surprising the parties or their representatives when all the proper vouchers and evidence are lost or the facts have become obscure from the lapse of time or the defective memory or death, or removal of witnesses.… That the statute (of limitation) is for the benefit and repose of individuals and not to secure general objects of policy and morals". In U.K., the most ancient case is that of A' Court v. Cross [(1875) 3 Bi....
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....ea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss. We have copiously referred to the view expressed by the Apex Court in N. Balakrishnan v. M. Krishnamurthy [(1998) 5 SCALE 105] for the above view of ours. 17.The expression "sufficient cause" should be considered with pragmatism in justice oriented approach rather than technical detection by sufficient cause for explaining every day's delay. In Brij Inder Singh v. Kanshi Ram [AIR 1917 PC 156], it was observed that true guide for a Court to exercise the di....