Case: Addl. Collector Of Customs, Calcutta &amp; Anr Vs. M/S. Best &amp; Co

1. On March 31, 1959 the respondents obtained a licence to import certain machinery from West Germany. The import licence contained particulars of the machinery to be imported and inter alia stated that its value would be "C.I.F. value of Rs. 45,000. One of the conditions upon which the licence was issued was that"The above application is accepted and import licence is granted having quantity and value as the limiting factor and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than five per cent2. The machinery arrived at the port of Calcutta sometime in July 1960 and was allowed to be cleared on the bill of entry submitted on behalf of the respondents. The bill of entry showed the CIF value of the machinery at Rs. 44,843. 61 nP. The customs authorities thereafter assessed the duty payable on the said machinery and the duty so assessed was paid by the respondents. On May 6, 1961, in consequence of certain information received by the authorities a search was made of the business premises of the respondents and also of Stahlumon and Co. Ltd. the agents of the exporters. As a result of the search certain documents and papers were seized by the customs authorities. On June 19/20, 1961 a notice was served upon the respondents calling upon them to show cause why action should not be taken against them under S. 167 (8) of the Sea Customs Act, 1878 The notice alleged that the respondents were guilty of illegal import of goods worth Rs. 6,730.74 np that being the excess value of the goods permitted to be imported under the said licence. The respondents in due course gave their explanation. Thereafter an amended show cause notice dated September 21, 1961 was served upon the respondents charging them under S. 167 (8) of the Sea Customs Act read with S. 3 (2) of the Imports and Exports Control Act, 1947 for illegally importing the said consignment. The respondents were given a personal hearing and thereafter the first petitioner passed an order dated March 17, 1962 directing confiscation of the said machinery and imposing a fine of Rs. 20,000 in lieu of confiscation and further imposing a personal penalty of Rs. 25,000. Aggrieved by this order the respondents filed a petition in the High Court under Art. 226 of the Constitution praying for mandamus directing the petitioners to rescind the order dated March 17, 1962 and for certiorari quashing the said order. The learned single Judge who heard the petition passed an order dated September 2, 1963 dismissing the petition holding that the said import was illegal. Thereupon the respondents filed an appeal against the said order and the Appellate Bench of the High Court by its order dated December 18, 1964 allowed the respondents appeal directing the petitioners to forebear from giving effect to the said order of the first petitioner. The petitioners filed an application for a certificate under Art. 133 but the Appellate Bench of the High Court by its order dated August 17, 1964 dismissed the said application on the ground that it was barred by limitation, though holding that(i) the valuation tests laid down in sub- Cls. (a) and (b) of Art. 133 (1) were satisfied, and(ii) that the order being one of reversal the petitioners were otherwise entitled to a certificate3. The intended appeal was against the said order dated December 18, 1964 by which the High Court issued the writ of mandamus against the petitioners4. As aforesaid, the High Court delivered its judgment and passed the above mentioned order allowing the respondents appeal on December 18, 1964. On December 19, 1964 the petitioners applied for certified copies of the said judgment and the said order. The certified copy of the judgment was furnished to the petitioners on January 18, 1965. The petitioners however waited for the certified copy of the said order which was yet not furnished to them. As the certified copy of the said order was not finalised and was not ready the petitioners filed the said application for leave on May 10, 1965 annexing thereto the certified copy of the judgment only. On July 17, 1965, a certified copy of the said order was furnished to the petitioners but they did not annex it to their application for leave as it was already filed. As stated earlier the High Court dismissed the application by its order dated August 17, 1965, on the ground that it was barred by limitation. The High Court however observed that if the petitioners had annexed the certified copy of the said order furnished to them on July 17, 1965, they would have been entitled to exclude the time taken in obtaining it from the period of limitation under S. 12 (2) of the Limitation Act. The result according to that view would be that:-(i) if the petitioners had waited till July 17, 1965 and filed their application annexing also the certified copy of the said order their application would have been entitled to exclude the time for obtaining it;(ii) if they had amended their application and annexed the certified copy of the order on receiving the same they would still have been entitled to exclude the aforesaid period and their application then would have been within time; and(iii) if they had withdrawn the application and filed a fresh application annexing thereto the certified copy of the said order such fresh application would have been within time as they would have been entitled to exclude the time taken in obtaining the certified copy of the order. According to the High Court the petitioners however were not entitled to exclude the time for obtaining the certified copy of the order as they had filed the said application without annexing thereto the copy of the said order and their application filed on May 10, 1965 was already time barred.

Reasoning:
On a plain reading of these sub-sections, it is clear that the time for obtaining the certified copy of both the judgment and the decree or order as the case may be, must be excluded while computing the period of limitation. The object of the exclusion is to enable the person desiring to appeal to consider the terms of the decree, judgment and order before he decides to launch a further proceeding in respect of it7. Two views were, however, canvassed before us on the construction of S. 12. One was that the right of exclusion of time is qualified by the words "time requisite for obtaining a copy of the decree, sentence or order" in sub-section 2. Therefore, if an application for leave to appeal does not require a certified copy of the order in question to be annexed to the application it is not possible to say that the time required for obtaining such a copy was requisite. In such cases the time in obtaining copy would not be requisite time and consequently the applicant would not be entitled to exclude the time taken in obtaining the certified copy of the order. Certain decisions of some of the High Courts have also taken the view that such an applicant would not be entitled to the benefit of the sub-section where a copy of the decree, judgment or order is not actually annexed to the application or the memorandum of appeal. The other view is that sub-ss. 2 and 3 of S. 12 enact the rule of exclusion as a positive direction. The object of the sub-section being to afford a party opportunity to consider his position even where a certified copy of the judgment gives all the necessary information enabling the party to decide to proceed further or not, he would nevertheless be entitled to exclude the time for obtaining the certified copy of the decree or order. It has been held in some decisions that even in cases where it is not necessary to prepare a formal order, if such an order is prepared, the party would be entitled to the benefit of exclusion of time taken in preparing and furnishing a copy thereof where it is applied forRule 4, in Chapter XXXIII - A of the Rules of the High Court requires that an application for leave to appeal shall be made by a notice of motion before the appellate Court and shall be presented in the prescribed form, viz.; Form No. 3. That form does not require that a certified copy of the judgment and/or decree or order need be annexed to such an application. The rule and the form thus enable a party to file an application for a certificate without annexing either a copy of a judgment or a copy of an order. But that does not mean that the rule and the form lay down any mandatory direction that a copy either of the order or of the judgment shall not be annexed. The rule and the form thus do not assist or further the argument urged by counsel for the respondents10. In regard to his first contention the learned counsel for the respondents urged that sub-ss. 2 and 3 of S. 12 would not apply where it is not necessary to annex a copy of the judgment or order. For, in such a case it is not possible to say that the time taken in obtaining such a copy is time "requisite" within the meaning of that expression in sub-s.2 of S. 12. Exclusion of the time required in obtaining a copy of the order therefore can only be allowed if and only if, such a copy is either required to be annexed or in any event is in fact annexed to the petition for leave to appeal11. These observations were an answer to the contention that no time could be requisite for obtaining something not requisite. The legislature allowed the exclusion even though the rules of a Court might not require a copy to be annexed to the memorandum of appeal for a party who intends to file an appeal may desire to examine the decree or the judgment before he launches a further proceeding. Therefore, the exclusion was allowed irrespective of the rules of a Court which permit a party to file an appeal without annexing a certified copy of the judgment or decree or orderIn our view such a result is not to be contemplated. As the Privy Council has laid down the provisions of S. 12 (2) and (3) are a positive direction excluding the time taken in obtaining a copy of the judgment and decree or order as the case may be and those provisions are irrespective of the Code of Civil Procedure or the rules made by a Court under S. 122 of the Code. Such rules if they permit a memorandum of appeal to be filed without annexing thereto a copy of the judgment or decree or order confer a privilege on a would-be appellant but do not govern the positive direction contained in S. 12.The High Court in this view, therefore, was not right in dismissing the petitioners application for leave to appeal on the ground that it was barred by limitation.