Union Carbide India Ltd v. Commissioner Of Customs

P.C. Jain, Member (T)

1. The subject application seeks condonation of delay in filing this appeal before the Tribunal. The delay is of 430 days. The impugned order was received by the applicants on 6-5-1992. The issue involved was as regards admissibility of refund claim on short receipt of goods. It is stated by the applicants that after receiving of the order, the paper was handed over by the applicants to their Advocate at Delhi. On the advise of the advocate, the applicants deposited fees of Rs. 200/- for filing the Revision Application before the Government of India on 23-7-1992. The Revision Application was filed on 10-8-1992 i.e. 4 days after expiry of time limit of 3 months for filing the Revision Application. The matter lingered thereafter in the office of the Government of India dealing with Revision Application. The Joint Secretary, Government of India concerned passed an order dated 27-8-1993 holding that the matter relates not to the short landing of the goods but to the short receipt of the goods at the time of delivery and, therefore, the Revision application does not lie to the Government. It was rejected as not maintainable.

2. After receipt of this order on 14-9-1993 by the applicants, the appeal has been filed before the Tribunal on 11-10-1993 i.e. within 27 days of receipt of the order from the Government of India.

3. Ld. Advocate, Shri S.K. Bagaria submits that the applicants had been following the remedy against the impugned order on Revision Application before the Government on the advice of a regular Counsel. It is well settled, he submits that the remedy being followed in a wrong forum, would not lead to the delay on part of the applicants because they following the remedy bonafide-ly. For this proposition, he relies on (i) 1994 (71) E.L.T. 347 in the case of Madura Coats Ltd. v. C.C.E. (S.C.) (ii) 1996 (83) E.L.T. 249 (S.C.) in the case of Pasupati Overseas Pvt. Ltd. v. CC. (S.C). He submits that the subsequent delay of 26 days and the initial 4 days delay in filing the Revision Application have been adequately explained in the application. First delay of 4 days was on the part of the advocate that he could not locate the necessary papers. Later delay of 26 days is on account of consultation with the advocate at Delhi, preparation of appeal etc. He submits that this period is fairly reasonable and cannot be considered to be involving the long delay having regard to the fact that the matter itself is very old. He further submits that the three months period is allowed by the Act for filing appeal after excluding the period of delay caused by pursuing their remedy in wrong forum. He, therefore, prays for allowing the application.

4. Opposing the contention, ld. SDR, Shri T. Premkumar submits that the Revision Application itself was filed late by 4 days. He further submits that the preamble in the impugned order in this case clearly indicated that the appeal against the said order lies before the Tribunal. Therefore, an action on account of the applicant to file a Revision application before the Government of India cannot be termed bonafidely. He also submits that even after receipt of the Government of Indias order on 14-3-1993, 26 days delay taken by the applicants is on a higher side and it cannot be called that the applicants had been taking the matter in a dilly dalling manner. For this proposition, ld. SDR, relies on Tribunals judgment in the case of Bowreah Cotton Mills v C.C.E., Calcutta reported in 1994 (72) E.L.T. 58 where after admitting that the delay caused in pursuing the remedy in wrong forum is condonable the period of 28 days in that case therein considered worth condonation by the Tribunal. He submits that there is similar delay i.e. 26 days in this case. Therefore, the delay should not be condoned in this case. As regards the effect of the premable already mentioned above, ld. SDR relies on WRBs judgment in the case of Ratnesh S. Jain v. C.C. (P) reported in 1993 (63) E.L.T. 285 (Tribunal) wherein it has been held that if the appeal had been filed before a wrong forum despite the clear indication given in the preamble to the impugned order, delay of more than three months not condonable by the Collector. In this case, it is to be noted that the applicants therein filed an appeal before the Tribunal instead of before the Collector (Appeals). Registry of the Tribunal, however, returned the appeal after a period of four months possibly because of the time lag involved in administrative scrutiny of the number of appeal received. The delay in presentation of the appeal before the Collector (Appeals) was more than six months and the Collector (Appeals) was not competent to condone the delay for a period of more than three months beyond the initial period of three months according to the statute. In these circumstances, the impugned order passed by the lower appellate authority was held to be correct are not available before us in the present case, we observe.

5. We have carefully considered the pleas advanced from both sides. We observe as rightly pointed out by the ld. Advocate, for the applicants that the applicants filed a Revision Application under a legal advice. That being so the fact that there was a guideline given in the preamble in the impugned order is not material because preamble by itself cannot be a substitute to the provisions of the Act as understood by the legal counsel. We, therefore, hold that the applicant was pursuing the remedy before a wrong forum bonafidely. Thereafter, we also observe that the applicant had filed this appeal within 26 days of receipt of the order from the Government of India on Revision Application. This time in our view for filing the appeal is not un-reasonable. Therefore, having regard to the over-all facts and circumstances of the case, we allow the Miscellaneous Application and condone the delay in presentation of the appeal.