Sukhdeo Singh vs Commissioner of Cus., Ex. and Service Tax

Challenging the orders dated 1-3-2004 passed by Commissioner (Appeals), Customs & Central Excise, Allahabad and 25-11-2004 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, the present appeal has been filed u/s 130 of the Customs Act, 1962.

The authorities below by the orders under appeal have refused to condone the delay in filing of the first appeal on the ground that the appellant herein did not file an application for the same.

Facts may be noted in brief.

Against the order dated 26-9-2001 passed by the Additional Commissioner, Custom, Lucknow, an appeal was filed before the Commissioner (Appeals) on 30-1-2002. When the appeal came up for hearing, it transpired that the appeal was filed beyond 60 days but'' within 90 days from the date of service of the order. The appeal was dismissed as barred by time as there was no application for condonation of delay when it was filed. The said order has been confirmed by the Tribunal.

Heard learned counsel for the parties and perused the records.

In our view, the following substantial question of law is involved.

Whether on the facts and circumstances of the case, the first appellate authority was right in rejecting the appeal as barred by time as there was no application for condonation of delay, without giving any opportunity to file the delay condonation application?

A bare perusal of the order of the first appellate authority would show that the appeal was dismissed as barred by time as it did not accompany with an application for condonation of delay when it was filed. It does not appear from the said order that any opportunity was given by the authorities concerned to the appellant to move an application for condonation of delay. If the appeal was defective, the authorities concerned, should have given an opportunity to the appellant to remove the defect, moreover, an application for condonation of delay may be oral also.

The power given to the Commissioner (Appeals) for condonation of delay of 30 days is akin to the power given to court u/s 5 of the Limitation Act. With reference to Section 5 of the Limitation Act, it has been held that formal application for condonation of delay is not necessary. It has been held in Firm Kama Mal Bishan Dass v. Firm Mathura Dass Atma Ram, AIR 1959 Punjab 646 that merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it.

To the same effect is Markland Pvt. Ltd. and Others Vs. State of Gujarat, . It has been held that in the absence of written application for condonation of delay, the delay in filing the appeal can be condoned.

Identical view has been taken by this Court in Indrasani Devi v. D.D.C., Varanasi, 1981 ALJ 637, which has been reiterated in Muneshwari Devi v. Jitan Singh, 1993 AWC 792.

More or less, the same view has been taken in the case of Smt. Shakuntala Devi v. Banwari Lal and others, 1997 AWC 622.

The filing of the application for condonation of delay is in the realm of procedure. The procedure as far as possible cannot and should be interpreted in such a way so as to take away the right of the parties.

The Apex Court with a reference to Section 5 of the Limitation Act in N. Balakrishnan Vs. M. Krishnamurthy, has laid down that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. In paragraph 12 of the report, it has been stated that rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered.

Ultimately, in para 14, it has been stated that it must be '' remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea 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. It has been laid down that in such matters, approach of the court should be justice oriented. The words "sufficient cause" should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and Others, and The State of West Bengal Vs. The Administrator, Howrah Municipality and Others, .

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , the following has been held.

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.

Taking into consideration what has been stated above, in our considered view, the Commissioner (Appeals) was not justified in rejecting the appeal as barred by time without giving an opportunity to the appellant to file an application explaining the delay.

In normal circumstances, we would have referred the matter back to the authority concerned for consideration of the application for condonation of delay. But looking to the fact that the sufficient time has elapsed, it is not desirable to restore the matter back for consideration of delay condonation application.

Learned counsel for the appellants submits that the delay in filing the appeal has occurred as there was some statutory amendment by which the period of limitation for filing the appeal was reduced. Under that confusion though appeal was filed beyond sixty days but it was filed within thirty days thereafter from the date of the receipt of the order.

Considering that the grounds disclosed by the appellants are sufficient cause, we, therefore, condone the delay in filing the appeal before the Commissioner (Appeals), Customs & Central Excise, Allahabad.

In view of above, we hold that on the facts and circumstances, the Commissioner (Appeals) should have condoned the delay and he was not justified in rejecting the appeal as barred by time.

In the result, the appeal succeeds and is allowed and the matter is restored back to the Commissioner (Appeals) to hear and decide the appeal on merits. The orders dated 1-3-2004 passed by the Commissioner (Appeals) and 25-11-2004 passed by Customs, Excise & Service Tax Appellate Tribunal, New Delhi are hereby set aside.

No order as to cost.