IMPORTANT POINT
The Tribunal ought to have condoned the delay in filing appeal as delay was due to fact that there was some fraud which attracted Section 17 of the Limitation Act, 1963.

ORDER

Under appeal is an order of the Customs, Excise and Gold (Control) Appellate Tribunal declining to condone the delay on the part of the Revenue in filing the appeal before it and, therefore, dismissing the appeal.

2. The respondent had claimed that acrylamide was a synthetic adhesive and, therefore, entitled to duty free clearance against value based advanced licences pertaining to the export of leather goods. The Assistant Commissioner of Customs rejected the claim. The Commissioner (Appeals) accepted the claim.

3. Before these authorities the respondent relied upon the opinion of V.M. Divate, Tanning Expert and Superintendent, Government Institute of Leather Technology, Mumbai, a certificate from Mitsubishi Chemicals, a certificate from Professor D.D. Kale, University Department of Chemical Technolgy, Mumbai, and the opinion of the Deputy Chief Chemist.

4. The order of the Commissioner (Appeals) was passed on 14th June, 1995. In November, 1996, acting upon intelligence then received, the Central Intelligence Unit of the Mumbai Custom House commenced an investigation. It was then revealed that there was reason to doubt the veracity of at least some of the aforestated documents upon which the respondent had relied.

5. The appellant thereupon filed the appeal before the Customs, Excise and Gold (Control) Appellate Tribunal whereon the order under challenge was passed. It sought condonation of delay in filing the appeal setting out in some detail the reason for which the appeal had been filed after the period of limitation. The Tribunal declined to condone the delay, taking the view that the judgment of this Court in Ajit Singh Thakur & Anr. v. State of Gujarat1 was applicable and that it could not look into the nature of the grounds of appeal.

6. The Tribunal would appear to have lost sight of the cardinal principle which is enshrined in Section 17 of the Limitation Act that fraud nullifies everything. If the Tribunal was satisfied, as it ought to have been upon these facts, that there might be some fraud, there was every reason for it to condone the delay and to hear the appeal. The judgment in Ajit Singh Thakur s case has no application to facts such as these.

7. The appeal is allowed. The order under appeal is set aside. The application for condonation of delay is allowed. The Tribunal shall now hear the appeal on merits. In reaching its conclusion, the Tribunal will be guided purely by the merits of the case on either side and not be influenced by its earlier order.

8. No order as to costs.

(N.K.R.) Appeal allowed accordingly.

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Parallel Citations of other Journals :

Commissioner of Customs v. Candid Enterprises, 2001(5) Supreme 307 : 2001 (130) ELT 404 : 2001 (44) RLT 702 : 2001 (76) ECC 10 : 2001 (3) CCC 89 : 2001 (98) ECR 5 : 2001 (4) Civil LJ 97

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