Customs, Excise and Gold Tribunal - Bangalore
Commissioner Of Central Excise vs N.A. Jayaram on 5 March, 2003
Equivalent citations: 2003(161)ELT412(TRI-BANG)
ORDER G.A. Brahma Deva, Member (J)
1. These are two appeals filed by the Revenue accompanied with the applications to condone the delay in filing the appeals.
2. Arguing in support of the applications for condonation of delay, it was submitted by the Departmental Representative that since the Department has filed single appeal (E/1616/94) arising out of the common impugned order, well in time, these appeals may be considered as supplementary appeals and accordingly may be taken on record. Smt Radha Arun, ld. SDR made an alternative prayer for admitting these appeals on the ground that there was no necessity to file as many appeals against the same impugned order in view of the wordings of Section 35E(4) of the Central Excise Act, 1944. She said that Section 35E(4) of the Central Excise Act, 1944 prescribes only one application is required to be filed as against an order of the Commissioner under review. Sub-section (4) of 35E is reproduced below for ready reference :-
"35E (4) Where in pursuance of order under Sub-section (1) or Sub-section (2) the adjudicating authority or the authorized officer makes an application to the appellate tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by the appellate tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 35B shall, so far as may be, apply to such application".
She contended that one appeal is sufficient in terms of Rule 6A of the CEGAT (Procedure) Rules. The said rule also prescribes for filing one appeal in respect of one Order-in-Original. She drew our attention to Rule 6A of the CEGAT (Procedure) Rules, 1982, which is as under :-
"6A. The number of appeals to be filed : Notwithstanding the number of show cause notices, price lists, classification lists, bills of entry, shipping bills, refund claims/demands, letters or declarations dealt with in the decision or order appealed against, it shall suffice for purposes of these rules that the appellant files one Memorandum of Appeal against the order or decision of the authority below, along with such number of copies thereof as provided in Rule 9."
3. Shri Varadarajan appearing for the respondents submitted that these appeals cannot be treated as supplementary appeals in view of the fact that the appellants in these appeals were not made as parties in the main appeal. The Department has filed one composite appeal consisting of all the parties the position would have been different and in that context, these appeals would have been treated as supplementary appeals. That is not the case here. For the first time, the Revenue/Department is filing fresh appeals making Directors as parties in these appeals. There was no whisper about these parties in the appeal filed by the Revenue. That appeal was restricted to only one party. He also said that precisely this was the view of the Larger Bench in the case of CCE, Mumbai v. Azo Dye Chem reported in 2000 (120) E.L.T. 201 (Tri-LB). The Counsel drew our attention to Para 8 of the said order, which is as under :-
"Ld. Departmental Representative then brought to our notice the decision of a Bench of this Tribunal in Collector of Central Excise v. New Tobacco Co. Ltd, 1999 (109) E.L.T. 640 in support of his argument that the Tribunal has power to condone the delay in filing an appeal. In that case, a show cause notice was issued to M/s. New Tobacco Co. Ltd. and seventeen others. The Collector of Central Excise passed a common Order-in-original against all the noticees. That order was communicated to all the noticees namely, eighteen in number. This order was reviewed by the Central Board of Excise and Customs. In pursuance of the order of the Board, an appeal was filed by the Collector of Central Excise with all the eighteen noticees as respondents. During the pendency of the appeal, Revenue sought to file seventeen supplementary appeals against each of the noticees who were mentioned as respondents in the earlier appeal. Then the question arose as to whether the seventeen appeals are to be admitted after condoning the delay. The Bench took the view that appeal having been preferred against all the eighteen noticees by filing the first appeal, the filing of supplementary appeals was purely procedural. The Bench observed : -
"Since adjudication order was one and since the review was in respect of the allegations dropped, reading the two together and finding that since the composite appeal pertained to the persons against whom allegations have been dropped and they were required to be examined in appeal, therefore, the list was sufficient and one composite appeal served the purpose. In regard to issue of summons, we note that had the appeals come up for hearing, summons would have gone to all the parties mentioned in the list. We have also perused the case law cited and relied upon by both the sides. We have considered the various arguments adduced. We note that in the present case, filing of supplementary appeals was procedural inasmuch as the composite appeal was self-contained. It was not only in respect of one individual, but it was a challenge of the decisions on allegations contained in Part I of the Show Cause Notice vide Adjudication Order No. 22/1991."
The said decision has no application to the facts before us. In the instant case, even though there were twenty noticees and the Order-in-Original related to all of them, appeal was filed against Highland Dye Works alone. Other noticees were not arrayed as respondents in the appeal. So, the decision cited cannot be of any assistance to the department."
He contended that since the Directors were not made as parties in the main appeal filed by the Department there was inordinate delay in filing these appeals making Directors as parties and in the absence of sufficient cause shown by the Department these appeals are liable to be dismissed as barred by time. Further, he said that in terms of Section 6A (2) of the CEGAT (Procedure) Rules, if an impugned order is in respect of more than one person, each aggrieved person is required to file a separate appeal. Rule 6A (2) is as under :-
"6A(2). In case an impugned order is in respect of more than one person, each aggrieved person will be required to file a separate appeal (and common appeals) or joint appeals shall not be entertained)."
4. We have carefully considered the submissions made by both sides and perused the records. On going through the submissions with reference to the relevant provisions and the case law referred to above we are of the view that these appeals cannot be considered as supplementary appeals. At the time of filing a single appeal, the said appeal cannot be considered as composite appeal and in the result these appeals cannot be considered as supplementary appeals as it was rightly pointed out by the respondents' Counsel. The prayer made by the DR to permit her to change the cause title in the main appeal cannot be acceded to at this stage. In the facts and circumstances, and taking into consideration that there is inordinate delay in filing these appeals and in the absence of sufficient cause shown by the Department, applications to condone the delay are hereby rejected. Consequently, these appeals are dismissed as barred by time.