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Judgment
Rule, returnable forthwith.
Shri Shah waives service on behalf of the respondent.
Heard counsel.
By this petition filed under Article 226 of the Constitution of India, legality of order dated January 22, 1990 passed by Customs, Excise and Gold (Control) Appellate Tribunal is under challenge. It is not necessary to set out the facts in detail as the issue lies in a very narrow compass.
The petitioners had applied for refund of countervailing duty paid on Parcel No. B-18354 and 55/82. The parcel contained children''s film and the refund was sought on the basis of Censors certificate produced. The Assistant Collector of Customs, Postal Appraising Section, Bombay rejected the application for refund by order dated October 26, 1985 on the ground that exemption from payment of countervailing duty is not available under the notification relied upon the petitioners. The petitioners preferred appeal before the Collector of Customs (Appeals), Bombay, and the appeal was dismissed by order dated October 13, 1987. The appeal was dismissed on the ground of limitation. The Collector held that power to condone the delay in presentation of the appeal is only for a period of three months and as appeal was presented after that duration the delay cannot be condoned. The petitioners then approached the Tribunal, but the Tribunal dismissed the appeal holding that the Tribunal had no power to direct the Collector to condone the delay in presentation of the appeal because such a direction would be contrary to law.
Shri Dalal, learned counsel appearing on behalf of the petitioners, submitted that the petitioners desire to challenge the order passed by the Collector as well as independently claim that refund should be granted. After hearing Shri Shah, learned counsel for the respondents, in my judgment, the better course would be to condone the delay in filing the appeal and direct the Collector to dispose of the appeal on merits. The order was passed by the Assistant Collector on October 26, 1985 and was received by the petitioners on November 11, 1985. The appeal was filed before the Collector on August 7, 1986 and therefore obviously it was barred by limitation. In my judgment, looking to the peculiar facts and circumstances of the case and especially that the refund is sought in respect of film which is meant for the children, the delay can be condoned as an exceptional case. The condonation of delay in the present case should not be treated as a precedent.
Accordingly, petition succeeds and the order passed by the Collector of Customs (Appeals), Bombay on October 13, 1987 is set aside and the Collector is directed to dispose of the appeal on merits.
The petitioners would not be entitled to any interest on the amount of refund if granted as the delay is condoned in favour of the petitioners as a matter of grace. The Collector should determine the claim of refund on merits.
There will be no order as to costs.