Customs, Excise and Gold Tribunal - Tamil Nadu
Richardson And Cruddas (1972) Ltd. vs Collector Of Central Excise on 18 March, 1987
Equivalent citations: 1987(12)ECC186, 1987(12)ECR49(TRI.-CHENNAI), 1987(29)ELT577(TRI-CHENNAI)
ORDER
1. This reference application is directed against the Order of the Tribunal in Excise Appeal No. 101/86(MAS) dated 25-8-1986. The applicant has set out under column 8 of the reference application various questions as questions of law arising out of the_ impugned order of the Tribunal meriting reference to the High Court in terms of Section 35 G of the Central Excises and Salt Act, 1944, the Act' for short.
2. Since elaborate submissions for a considerable length of time was made by the learned Consultant on behalf of the reference applicant in respect of various questions set out in the reference application and since we propose to discuss the various points argued before us in extenso, we do not think it necessary at this stage to extract verbatim the various questions set out in the Reference Application.
3. The learned Consultant, Shri S. Venkataraman, at the outset submitted that the Tribunal has 'over stepped its authority' in giving a finding under the impugned order that consequent on the non-condonation of the delay in the presentation of the appeal, the connected appeal No. E/101/ 86(MAS) and Excise Stay/19 3/86( MAS) also fail and are dismissed. It was urged that even if an application seeking condonation of delay in the presentation of the appeal is not condoned, it would not as a matter of consequence follow that the connected appeal and stay application would also fail and would be liable to be dismissed. The learned Consultant expatiated on the significance and connotation of the expression 'Advocate' and read out passages from Encyclopaedia Brittanica (2) Webster's Dictionary and Shorter Oxford Dictionary and (3) Legal Dictionary by Mitra. The substance of the submission was that by reason of the fact that the reference applicant had entrusted all the papers with his Counsel and bona-fide thought that proper steps would be taken up by the learned Counsel for filing the appeal as per law before the appropriate forum, the applicant did not take any steps and it is in this context, if there are lapses or latches on the part of the Advocate to whom the case was entrusted by the party, the party or the client cannot be made to suffer the legal consequences thereof by being deprived of the substantive right of appeal. It is in this context the learned Consultant urged that as per Encyclopaedia Brittanica, an 'Advocate' is one who is professionally qualified to plead the cause of another and as per the definition of the term 'Advocate' in Webster's Dictionary. 'Advocate means to summon or call to ones aid and an Advocate is one who pleads the cause of another person before a Tribunal. Similar definition in Shorter Oxford Dictionary was also read out by the learned Consultant to contend that "an Advocate is one who pleads the cause of anyone in a Court of Justice or who intercedes or argues for another.' Reliance was also placed on the connotation of the word 'Advocate' as expounded by] Mitra in his legal dictionary, defining the 'Advocate' as a patron of 4 cause assisting his client with advice and as one who aids another in the conduct of a suit or one who pleads the cause of another in a Tribunal or Judicial Forum". The learned Consultant repeatedly emphasised that if an Advocate with whom a brief has been entrusted and who is an expert keeps all the papers and makes himself scarce as it were and is not traceable the client would be totally helpless and in such a situation the client or the party cannot be faulted on the ground that he did not file the appeal within the stipulated period of time and whatever be the delay in such circumstances would merit condonation as delay occasioned for reasons beyond the control of the client or the party as the case may be. It was further urged that in the instant case, the application seeking condonation, the application seeking dispensation of prior deposit of duty and the impugned order in appeal are all interlinked and inseparable. In developing this argument, the learned Consultant submitted that the dismissal of the appellant's appeal by the lower appellate authority in terms of Section 35(F) of the Act on grounds of non-deposit of duty was patently incorrect on fact inasmuch as the Department had to its credit bank guarantee to the tune of Rs. 60 thousand covering the entire amount involved in the appeal in question. It was further urged that the applicant was called upon by the original authority to pay duty on articles which would not comewithin the mischief and ambit of the definition 'goods' under the Act and the articles themselves not being excisable, the very order of the original authority is without jurisdiction. It was therefore, submitted that the original order fastening duty liability being without jurisdiction as the goods themselves were not excisable and dismissal of the applicants' appeal under the impugned order by the lower appellate authority on grounds of non-deposit of duty under Section 35F of the Act being factually incorrect, this Tribunal under the impugned order should have appreciated all the inter-linked questions relating to condonation, stay and appeal and given a proper finding and without doing so, the impugned order of the Tribunal, dismissing the applicants' application for condonation of delay on the ground that it was not properly or satisfactorily explained, is erroneous and a question of law would arise out of such an erroneous order meriting reference. The learned Consultant further contended that the discretion conferred on the Tribunal in respect of condoning delay in the presentation of the appeal is unlimited and such unlimited power and discretion should be used liberally to further the cause of justice and not to obstruct the same. In dilating on this aspect, the learned Consultant urged that there is no built in restrictions in the exercise of discretion as in the case of non-deposit of duty or penalty in terms of Section 35F of the Act. The learned Consultant also placed reliance on the ratio of the ruling of the Supreme Court in the case of Ratanchand Darbarilal v. Commissioner of Income-tax, Madhya Pradesh, reported in 1985 (22) E.L.T. 635 (S.C.) and contended that the Tribunal should take into consideration relevant facts and if salient features are over-looked, it would tantamount the Tribunal mis-directing itself and the conclusion reached in such a context would be an erroneous conclusion and would be a question of law meriting reference. The learned Counsel also placed reliance on the ruling of the Division Bench of the Madras High Court in the case of Collector of Central Excise, Madras, v. Chennai Bottling Company, Madras, reported in 1986 (24) ELT 3 (Mad.) and contended that interpretation of document is a question of law and this proposition of law being well settled, it was urged that the impugned order of the Tribunal itself is a document within the meaning of Section 3(18) of the General Clauses Act and therefore, if the applicant joins issue with the Department in the matter of interpreting the impugned order, that would be a question of law meriting reference. Finally, it was contended that the impugned order of the Tribunal, in not condoning the delay is itself a question of law since "it has created substantial grievance to the appellants and such an order has to be subjected to judicial test by the High Court."
4. Shri K.K. Bhatia, the learned Senior Departmental Representative contended that in the reference application, no questions of law have been set out at all for consideration. It was further urged that out of the impugned order of the Tribunal, no question of law arises because the Tribunal on consideration of the evidence available before it has given a finding of fact that the admitted delay in the presentation of the appeal was not sufficiently or properly explained and such a finding of fact in appreciation of the evidence before the Tribunal would not make for a question of law meriting reference.
5. We have carefully considered the submissions of the parties herein. This is a case where admittedly the impugned order of the Tribunal is one rejecting the applicants petition for condonation of delay in the presentation of the appeal filed before the Tribunal. The Tribunal addressed itself to the question as to whether the delay of about 3 months and 15 days in the presentation of the appeal before the Tribunal has been satisfactorily and properly explained and whether there was sufficient or proper reasons for condoning the same. In adverting to this question, the Tribunal in appreciation of the evidence available before it has found that the impugned order appealed against before the Tribunal was duly served on the applicant by Regd. Post with Ack. Due as per law as early as in January 1986 and the appeal was filed only after a delay of about 3.1/2 months thereafter excluding the time of three months for filing the appeal under the Act. It has also been found as a fact on evidence that the impugned order appealed against before the Tribunal was not one on merits but was one for dismissal for non-deposit of duty in terms of Section 35 F of the Act. It was only in such a background the reason addressed for condonation of delay that the papers were with the applicant's counsel who did not take proper steps for presenting the appeal was considered. The Tribunal in appreciation of the evidence and circumstances gave a finding on fact that the delay of 3.1/2 months in the presentation of the appeal in such circumstances was not properly explained and that there was no sufficient cause or proper reason meriting condonation. This finding of fact by the Tribunal in appreciation of the evidence would not make for a question of law unless there is material to show that the exercise of a judicial discretion by the Tribunal in not condoning the delay in the facts and circumstances of this case, is either patently perverse or demonstrably arbitrary. In the instant case, we do not think that the various submissions of the learned Counsel with reference to the connotation of the expression 'Advocate' or the role of an Advocate would have any relevance at all. When admittedly the applicant was in receipt of the copy of the order passed by the lower appellate authority and which order as we stated above was not one on merits but one of rejection on grounds of non-deposit of duty in terms of Section 35 F of the Act, we fail to understand as to how with any justification the applicant could plead that merely by reason of the fact that other papers were with the applicant's Counsel, the applicant could not effectively prosecute the appeal by presenting the appeal within the stipulated time. We are not able to agree with the submissions of the learned Consultant that the application seeking condonation, the stay petition and the appeal are inextricably inter-twined and that in this view of the matter, the delay in the presentation of the appeal by the applicant before the Tribunal should have been condoned. It is settled proposition of law that the appeal, though a substantive right is not a rested common law but is a right conferred under a Statute. Therefore, under the Act, when the applicant is given the right of appeal in terms of Section 35 B to be exercised within a period of three months from the date on which the order sought to be appealed against was communicated and the same was not exercised, the primary question that would arise for consideration is whether the delay in the presentation of the appeal is properly explained or whether there was any sufficient cause for the delay in the presentation of the appeal. The Tribunal having considered this issue, has given a finding that there was no sufficient cause for the applicant for not filing the appeal within the stipulated period of time and when the application for condonation was dismissed, it would follow, as a matter of legal consequence that the appeal itself would not survive for consideration and therefore, the appeal and the connected stay petition were consequently dismissed. In such a situation, we fail to appreciate as to how it could be argued that the condonation application, the stay application and the appeal are inextricably inter-twined as it were and the delay in the presentation of the appeal should have been condoned by the Tribunal. It is no doubt that the law has conferred a wide and un-limited power to condone the delay in the presentation of the appeal but such power is not totally un-fettered and as rightly contended by the learned Senior Departmental Representative, it calls for the exercise of judicial discretion and such a discretion cannot be exercised arbitrarily. Section 35-B(5) of the Act is clear that the Tribunal may admit any appeal after the expiry of the relevant period referred to in Sub-section (3) of Section 35B of the Act if it is satisfied that there was sufficient cause for not presenting it within the period. Even assuming for the purpose of argument that the finding of the Tribunal with reference to the sufficiency or otherwise of the cause for not presenting the appeal is not correct ipso facto or that by itself would hot make for a question of law. The rulings relied upon by the learned Counsel are not relevant to the facts and circumstances of this case. The ruling of the Supreme Court reported in 1985 (22) ELT 653 (SC) in the case of Ratanchand Darbarilal v. Commissioner of Income-tax, Madhya Pradesh, is to the effect that if an order is passed by the Tribunal without taking into account the relevant factors or if the Tribunal has mis-directed itself by over-looking the salient features and reached an erroneous conclusion, that would make for a question of law. With profound respect, we would like to submit that nobody can quarrel with such axiomatic proposition of law. In the instant case, the reasons adduced by the applicant seeking condonation of delay has well been taken into consideration, appreciated and evaluated and a finding thereon has been given under- the impugned order. Likewise, we do not find any relevance at all to the ratio of the ruling in Chennai Bottling case reported in 1986 (2(f) ELT 3 (Mad.) referred to supra where the Divn. Bench of the Madras High Court has referred to a judgment of the Supreme Court in 1C1 India Pvt. Limited v. Commissioner of Income-tax, West Bengal 111 and Commercial Art Press v. Commissioner of Income -tax, 87 ITR 468, to hold that interpretation of a document will amount to a question of law. In the instant case, we have no hesitation to hold that no question of law much less any question of interpretation of any document arise for consideration at all and the plea of the learned Consultant that the impugned order of the Tribunal itself should be construed to be a document within the meaning of Section 3(18) of the General Clauses Act and should be construed as a document and any question relating to the same would amount to interpretation meriting reference is mis-conceived and un-tenable in law. If one were to adopt this argument of the learned Consultant in all cases where the orders of the Tribunal are sought to be assailed as incorrect by way of reference application, a reference will have to be invariably made. We are not inclined to hold that the impugned order of the Tribunal is a document, as contended the interpretation of which would invariably amount to a question of law. In this context, we would like to refer to Section 35-G of the Act whereunder only a question of law arising out of the order of the Tribunal would merit reference to the High Court. Therefore, on careful consideration of the entire materials before us, we are inclined to hold that the impugned order of the Tribunal is purely a finding of fact in appreciation of the evidence before it and in exercise of a judicial discretion of the same, in our opinion, does not make for! a question of law meriting reference to the High Court in terms of Section 35-B of the Act. In this view of the matter, we reject the reference application.