Customs, Excise and Gold Tribunal - Delhi
Hans Metals Ltd. vs Commissioner Of C. Ex. on 13 December, 1999
Equivalent citations: 2000(117)ELT421(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. After hearing for some time with reference to the stay petition filed by the assessee I felt that the matter itself can be disposed of, Accordingly, appeal was taken for regular hearing with the consent of both the sides.
2. The Commissioner (Appeals) has dismissed the appeal on the ground that appeal was filed beyond the statutory period prescribed under Section 35 of the Central Excise Act. He observed that the appeal has been received in his office on 16-3-1999 and the order in original as admitted in the appeal was received by the appellants on 18-12-1997. Accordingly, appeal has been filed late by 11 months and 28 days. He was not convinced with the reason given by the assessee to condone the delay. He observed that "It is appellants' responsibility to the the appeal within the time limit and also it was the duty of the appellants to exercise proper control over the receipt/disposal of the important legal matters and to monitor the progress of the disposal. But it appears that they have not shown due diligance in the matter. For their neglect and casual approach, they can not get any benefit. The appeal is dismissed as time barred under Section 35 of the Central Excise Act, 1944".
3. Arguing for the appellants, Shri R. Santhanam, learned Advocate submitted that admittedly there has been delay of nearing 12 months before the Commissioner (Appeals) due to unavoidable circumstances. He said that concerned employee Sh. K.B. Khare was hospitalised and he was the person who was handling the matter and in view of his illness the party/appellant could not file the appeal before the Commissioner (Appeals) well in time. The Commissioner (Appeals) should have condoned the delay in the facts and circumstances. Further, he argued that without going into merits whether there was delay or not before the Commissioner (Appeals), since the appeal is in time before the Tribunal and in view of the circumstances explained above the Tribunal has to decide the issue on merits. In support of his contention, he referred to the decision & observations made by the Supreme Court in the case of S.S. Rathore (Appellant) v. State of Madhya Pradesh reported in AIR 90 Supreme Court 10. Particularly he drew my attention to para 12 of the said decision which reads as under :-
"12. The next Constitution Bench decision of this Court is that of Collector of Customs, Calcutta v. East India Commercial Co. Ltd. (1963) 2 SCR 563: (AIR 1963 S.C. 1124) where this Court observed (at p. 1126).
The question, therefore, turns on whether the order of the original authority becomes merged in the order of the appellate authority even where the appellate authority merely dismisses the appeal without any modification of the order of the original authority. It is obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case where the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. In law, the appellate order of confirmation is quite as efficacious as an operative order as an appellate order of reversal or modification."
Shri R. Santhanam, learned Advocate submitted that para 12 therein was of the earlier view and same has been reviewed by the Supreme Court as can be seen from para 14,15 and 16.
4. Heard Shri D.K. Nayyar, learned JDR for the Revenue.
5. I have carefully considered the matter. The appellants' Counsel raised two issues (i) The Collector (Appeals) should have condoned the delay in filing the appeal and (ii) The Tribunal should decide the matter on merits without going into the issue whether appeal filed before the first appellate authority was barred by time or not. I will deal with the first issue later. As regards to the second issue, I am not convinced with the arguments advanced on behalf of the assessee that Tribunal should streightaway decide the issue on merits without going into time bar issue before the first appellate authority. The decision cited by the appellants' Counsel (Supra) is not much helpful to him. The ruling given by the Supreme Court in the aforesaid case was with reference to doctrine of merger. No why it was said that the second appellate authority should look into the matter and deal with the appeal on merits if the appeal is in time before the second appellate authority without going into time bar issue before the first appellate authority. With reference to the cause of action and merger theory the observation made by the Supreme Court in para 20 is also relevant and same is as under :-
"20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle"
6. In the present case I am not concerned with the question of maintainability before the Tribunal but whether Commissioner (Appeals) was justified in rejecting the appeal as barred by time. It is well settled position that order in original merges with the order in appeal passed by the first appellate authority and the appeal against such an order is maintainable before the second appellate authority. But the question remains whether sufficient cause was shown by the appellant to condone the delay and whether Collector (Appeals) was right in rejecting the appeal as barred by time. In the present case there was a delay of nearly 12 months. The reason given by the party is that employee of the appellant concern was not keeping a good health and was hospitalised. The reason given by the party was neither convincing nor sufficient to condone the delay as it was rightly held by the Collector (Appeals) in the impugned order. In view of inordinate delay and in the absence of convincing reason the Collector (Appeals) was right in rejecting the appeal as barred by time. In the facts and circumstances, I am of the view that Commissioner (Appeals) was right in rejecting the appeal as barred by time. Further, I hold that the Tribunal is not empowered to go into the merits streightaway without considering whether appeal filed by the party before the first appellate authority was in time or not. The appellant fails on both the issues. In the view I have taken, I am not inclined to interfere with the order passed by the Commissioner (Appeals). In the result, appeal as well as stay application is dismissed. Ordered accordingly.