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2004 DIGILAW 682 (GUJ)

Reliance Industries Ltd. v. UNION OF INDIA

2004-10-05

B.J.SHETHNA, SHARAD D.DAVE

body2004
B. J. SHETHNA, J. ( 1 ) HEARD learned Senior Advocate, shri K. S. Nanavati for the petitioners and shri Jitendra Malkan, learned Standing counsel for the respondents. ( 2 ) THE petitioner No. 1 is Reliance industries Ltd. and petitioner No. 2 is its deputy General Manager. By way of this petition, the petitioners have prayed that impugned order dated 23. 11. 2000 (Annexure- g) passed by the Customs, Excise and (Gold) Control Appellate Tribunal, West regional Bench, Mumbai (for short "cegat") dismissing Application No. E/cod/ 242/2000 for condonation of delay in Appeal no. E/1254/2000 and consequence thereof dismissing appeal, be quashed and set aside. ( 3 ) THE Commissioner (Appeals) by his impugned order, dated 30. 11. 1997 (Annexure-D) disposed of in all, 27 appeals filed by the petitioner-Reliance Industries ltd. relating to eligibility of certain inputs in the MODVAT Scheme by observing that"in view, of above, I hold that Ammonia, propylene, Trisodium Phosphate, Liquid nitrogen Code IOC, Feron, Nitrogen gas, dowtherm, Methylene Chloride, Lithium bromide, Octyl Alcohol are eligible for modvat credit. Accordingly benefit of modvat credit is to be extended to these inputs. However in case of Fes Oil, Demineralized water and steam, Lubricating Oil, transformer Oil, Fatty Alcoholic non-toxic acid and Refractory Balls and Ceramic balls, i uphold the Assistant Commissioners order denying the credit. The impugned orders are modified to the above extent". ( 4 ) AGAINST the aforesaid order, appeal no. E/1254/2000 was filed before the CEGAT on 12. 4. 2000 along with an application for condonation of delay i. e. Application No. 242 /2000 as the said appeal was barred by period of limitation of 746 days. "annexure-F" is the copy of the application dated 13. 3. 2000. The said application for condonation of delay runs into, in all, 5 typed pages, but only in paras 4 (ix) and 4 (x) the petitioner company tried to explain the delay. "4 (IX) Lubricating oil being common i,i two appeals-the Commissioner (appeals) has dealt with the item holding it ineligible but has missed listing the itent and demand in rupees in second appeal, which is based on taking the credit. However, through an oversight, an appeal in respect, of the Order-in-original no. M-S/adj / 132 / 97 / B dated 13th March. 1997 confirming Show Cause notice No. R-11 / SRT-IV / MP / 20-Mudel 29/96 dated 23. 12. 1996 remained to be filed. However, through an oversight, an appeal in respect, of the Order-in-original no. M-S/adj / 132 / 97 / B dated 13th March. 1997 confirming Show Cause notice No. R-11 / SRT-IV / MP / 20-Mudel 29/96 dated 23. 12. 1996 remained to be filed. 4 (x) The applicants submit that this fact of non-filing an appeal came to the light of the Applicants recently in the process of perusing the records on account of the impending financial year closure,"on the aforesaid two grounds, the petitioner company wanted CEGAT to condone the gross delay of 746 days in filing main Appeal No. E/1254/2000 late, but, cegat by its impugned order dated 23. 11. 2000 (Annexure-G) dismissed the said application, as it was of the opinion that no cause much less sufficient cause, was shown for cordoning such a gross delay of 746 days. Hence, this petition. ( 5 ) LEARNED Senior Advocate, Shri nanavati for the petitioner company, relying on two judgments of the Honble Supreme court of India (i) COLLECTOR, LAND acquisition, ANANTNAG AND another V/s. MST. KATIJI AND others REPORTED IN AIR 1987 SC 1353 and (ii) N. BAL KRISHNAN V/s. M krishna MURTHY REPORTED IN 1998) 7 scc 123. submitted that by not condoning delay of 746 days, learned CEGAT committed serious error of jurisdiction and thereby caused serious prejudice to the petitioner company in dismissing the appeal on the technical ground of limitation. He, therefore, submitted that this petition be allowed and the impugned order at annexure-G passed by the learned CEGAT be set aside and their application for condonation of delay be allowed and the learned CEGAT be directed to decide their appeal, after condoning the delay. Shri Nanavati also submitted that by refusing to condone delay of 746 days, the learned CEGAT has thrown out a meritorious appeal at the very threshold and cause of justice has been defeated. He submitted that, if the delay was condoned, then the matter could have been decided on merits, after hearing the parties. He also submitted that when substantial Justice and technical considerations were pitted against each other, then cause of substantial Justice should have been preferred, as the other side cannot claim to have vested right in injustice being done, because of a non- deliberate delay. He also submitted that when substantial Justice and technical considerations were pitted against each other, then cause of substantial Justice should have been preferred, as the other side cannot claim to have vested right in injustice being done, because of a non- deliberate delay. He also submitted 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. He also submitted that condonation of delay is a matter of discretion of the court and in the instant case by refusing to condone delay of 746 days, learned CEGAT committed jurisdictional error in not properly exercising its discretion in favour of the petitioner company. ( 6 ) HOWEVER, learned Standing counsel, Shri Malkan for the respondents vehemently submitted that by rejecting the application for condonation of delay, learned cegat has not committed any error, much less Jurisdictional error, which calls for the interference by this court in its limited jurisdiction under Art. 227 of the constitution of India. Relying on the judgment of the Honble Supreme Court in case of P. K. RAMCHANDRAN V/s. STATE of KERALA REPORTED IN AIR 1998 SC 2276 , Shri Malkan submitted that law of limitation may harshly affect a party, but it has to be applied with all its rigour, when the statute so prescribed and the courts have no power to extend period of limitation on equitable grounds. He submitted that in case of P. K. Ramchandran (supra) there was a gross delay of 565 days in filing the appeal late and the High Court had condoned such a gross delay of 565 days. Against which SLP was filed before the Apex Court and the apex Court reversing the Judgment of the high Court by observing that, the discretion exercised by the High Court was neither proper nor Judicious and held that the order passed by the High Court condoning the gross delay of 565 days was not sustainable at all. Accordingly, appeal was allowed by the Honble Supreme Court and the order passed by the High Court condoning the gross delay of 565 days was quashed and set aside. Accordingly, appeal was allowed by the Honble Supreme Court and the order passed by the High Court condoning the gross delay of 565 days was quashed and set aside. ( 7 ) HAVING heard learned counsel for the parties and having carefully gone through the impugned order at Annexure-G passed by the learned CEGAT, we are of the considered opinion that none of the aforesaid two Judgments of the Honble supreme Court of India cited by learned senior Advocate, Shri Nanavati have any application to the facts of this case. In case of Mst. Katijis (supra), appeal was filed by the State of Jammu and Kashmir against the decision of enhancing compensation in respect of acquisition of land for a public purpose to the extent of nearly 14 lakhs rupees by making an upward revision of the order of 800% (from Rs. 1,000 per kanal to rs. 8,000 per kanal ). There was a delay of hardly few days, an peculiar facts of that, case, the Honble Supreme Court observed that"refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of Justice being defeated". In case of N. Balakrishnan (supra), a suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex parte and on coming to know of such ex parte decree, the defendant moved an application to set it aside. But, the said application was dismissed for default. An application was moved after a delay of BBS days for setting aside the same by offering an explanation that"the appellant engaged an advocate (one Shri M. S. Rajith) for making the notion to set the ex parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17. 2. 1993. When he got a summons from the execution side on 5. 7. 1993, he approached his advocate but he was told that perhaps, execution proceedings would have been taken by the decree-holder, since there was no stay against such execution proceedings. On the advice of the sane advocate, he signed some papers including a vakalatnama for resisting the execution proceedings, besides making a payment of rupees two thousand towards advocates fees and other incidental expenses. But the fact is that the said advocate did not do anything in the Court even thereafter. On 4. 8. On the advice of the sane advocate, he signed some papers including a vakalatnama for resisting the execution proceedings, besides making a payment of rupees two thousand towards advocates fees and other incidental expenses. But the fact is that the said advocate did not do anything in the Court even thereafter. On 4. 8. 1993 the execution warrant was issued by the court and he became suspicious of the conduct of his advocate and hence rushed to the Court, from where he got the disquieting information that his application to set aside the ex parte decree stood dismissed for default as early as 17. 2. 1993 and that nothing was done in the Court thereafter on his behalf. He also learned that his advocate had left the profession and joined as a Legal Assistant of M/s. Maxworth orcheads India Limited. Hence, he filed the present application for having the order dated 17. 2. 1993 set aside" (emphasis supplied ). It may be stated that the aforesaid explanation offered by the applicant was accepted by the Trial Court and the delay of 883 days was condoned. However, the learned Single Judge of the Madras High court allowed the revision application filed by the other side, by holding that the delay of 883 days was not properly explained. An application for review filed against the said order was also dismissed by the learned Single Judge. Having regard to the peculiar facts and circumstances of the case, the Honble Supreme Court intervened and set aside the order of the high Court and restored the order of the trial Court. ( 8 ) COMING to the facts of the present case, it is clear that only two grounds sought to be made out in the application for condonation of delay by the petitioner company, which are already reproduced hereinabove. First. ground mentioned in para 4 (ix) is that through an oversight, an appeal in respect of the Order-in-original dated 13. 3. 1997 confirming Show Cause notice dated 23. 12. 1996 remained to be filed. Can this be said to be cause much less sufficient cause; Answer to this question would be obviously "no". If on such ground gross delay of 746 days is to be condoned, then practically? Limitation Act stands scrapped. 3. 1997 confirming Show Cause notice dated 23. 12. 1996 remained to be filed. Can this be said to be cause much less sufficient cause; Answer to this question would be obviously "no". If on such ground gross delay of 746 days is to be condoned, then practically? Limitation Act stands scrapped. Second ground mentioned in para 4 (x) is that non-filing an appeal came to the light of the Applicant, recently in the process of perusing the records on account of the impending financial year closure. It is false. Because the application for condonation of delay was filed on 13. 4. 2000, after an expiry of period of more than two financial years. In our considered opinion, such grounds cannot be said to be a cause, much less sufficient cause, for condoning such gross delay of 746 days. ( 9 ) THIS brings us to the impugned order at Annexure-G passed by the learned cegat dismissing the application for condonation of delay. We find from the impugned order passed by the learned cegat that in addition to the aforesaid grounds, an oral submission was made by the representative of the petitioner company before the learned CEGAT, that there was an error in the impugned order. In which led to the delay in filing of the appeal. If that is so, then appeal was required to be filed immediately or in any case before the expiry of the period of limitation. We cannot overlook the fact that petitioner is a well known company, must be having number of competent legal advisors. In spite of it if the appeal is not filed within the period of limitation and filed after a period of about 746 days, then such a gross delay cannot be condoned on the aforesaid grounds. ; ( 10 ) AT this stage, we state that learned Senior Advocate, Shri Nanavati for the petitioners submitted that the petitioner company has got a very strong prima facie case in its favour in the appeal, therefore, the learned CEGAT ought to have condoned the delay, as in similar matter it has set aside the order passed by the Collector (Appeals) on merits. In support of his submission. Shri Nanavati placed reliance on the Supreme Court judgment in case of collector OF CUSTOMS, COCHIN V/s. TOSHIBA ANAND BATTERIES LTD. REPORTED IN. 1997 (90 ). E. L. T. 16 S. C. I. . In support of his submission. Shri Nanavati placed reliance on the Supreme Court judgment in case of collector OF CUSTOMS, COCHIN V/s. TOSHIBA ANAND BATTERIES LTD. REPORTED IN. 1997 (90 ). E. L. T. 16 S. C. I. . It was a case in which there was a delay of only 50 days occurred and against the order of Tribunal dismissing the appeal on the ground of limitation, direct civil appeal was filed before yhe Honble Supreme Court arid having regard to the fact that the Tribunal had earlier allowed the appeals against the same order of the Collector (Appeals) and that the view of the Tribunal was already upheld by the Apex Court, therefore, Their lordships of the Honble Supreme Court were of the view that it was a fit case in which Tribunal should have condoned the delay in filing the appeal late. Thus, from the brief order of the Honble Supreme Court reported in case of Toshiba Anand Batteries ltd. (supra) , it appears that only on that short ground, Honble Supreme Court allowed the appeals filed before it, but nowhere it appears in the order of the honble Supreme Court that they found fault with the order of the Tribunal on the ground that sufficient cause was made out for condoning delay of 20 days and in spite of it, the Tribunal had committed an error in not condoning the delay of hardly 20 days. Be that as it may. Shri Nanavati has forgotten the fact that the petitioner company before us is not in appeal. It has challenged the impugned order passed by the learned CEGAT in this petition, which is filed under Art. 226 of the constitution of India. Though it is labeled under Article 226 of the Constitution of india, strictly speaking, it is a petition under art. 227 of the Constitution of India. In case of MOHD. YUNUS V/s. MOHD MUSTAQIM reported IN AIR 1984 SC, 38 the Honble supreme court held that the High Court has limited jurisdiction under Art. 227 of the constitution of India. A mere wrong decision without anything more is not enough to attract the Jurisdiction of the High Court under Article 227. Unless jurisdictional error is pointed out, orders passed by the tribunal cannot be interfered by the High court in its supervisory Jurisdiction under art. 227 of the Constitution of India. A mere wrong decision without anything more is not enough to attract the Jurisdiction of the High Court under Article 227. Unless jurisdictional error is pointed out, orders passed by the tribunal cannot be interfered by the High court in its supervisory Jurisdiction under art. 227 of the Constitution of India. The view taken by the Honble Supreme Court way back in 1984 is consistently followed till today and this court is also following the same. ( 11 ) WE have already set out in our order the grounds on which the petitioner company wanted delay to be condoned and the reasons assigned by the learned CEGAT for dismissing the application for condonation of delay. At the cost of repetition, we nay state that none of the aforesaid two grounds mentioned in the application for condonation of delay can be said to be cause much less sufficient cause for condoning such gross delay of 746 if days in filing the appeal before the learned CEGAT, more particularly, when the learned CEGAT applied its mind and not exercised its discretion in favour of the petitioner company, then certainly this court in its jurisdiction under Art. 227 of the Constitution of India would not like to interfere with such discretionary order. ( 12 ) IN view of the above discussion, this petition fails and is hereby dismissed. Rule discharged. However, there shall be no order as to costs. .