Customs, Excise and Gold Tribunal - Calcutta
Maithan Ceramic Ltd. vs Commissioner Of Central Excise, ... on 4 October, 2001
JUDGMENT
Archana Wadhwa
1. A very short point is involved in the present appeal. The Deputy Commissioner vide his Order-in-Original dated 25.8.99 rejected the appellants' Refund Claim of Rs. 1,82,315.00 (Rupees one lakh eighty-two thousand three hundred fifteen). Being aggrieved with the said Order, the appellants filed an appeal against the same before the Commissioner (appeals) on 22.8.2000 along with an Application for Condonation of Delay. The Commissioner (Appeals) by referring to the provisions of Section 35 of the Central Excise Act, 1944 held that there is no provision for condonation of delay after a total period of six months from the receipt of the Order of Adjudication, inasmuch as the appeal was filed after eleven months from the date of receipt of the Order, the same was rejected by the Commissioner (Appeals) as barred by limitation. The said Order of the Commissioner (Appeals) is impugned before me.
2. Shri D.N. Singh, learned Consultant for the appellants agrees that the Commissioner (Appeals) was having no powers to condone the delay beyond the period of six months, but submits that the same should be condoned by the Tribunal and the matter be remanded to the Commissioner (Appeals) for decision on merits. In this connection, he relies upon the Tribunal's decision in the case of Mark Auto Industries v. C.C.Ex., New Delhi reported in 2000(41) ELT-756 (CEGAT) holding that Tribunal can go into the merits of the case and decide the appeal on merits even where the appeal was dismissed as time-barred by the Commissioner (Appeals).
3. Countering the above submissions of the appellants, Shri A.K. Chattopadhyay, learned J.D.R. submits that it is well-settled that the authorities working under a particular statute cannot violate the statutory limit unless they are given an authority for condonation of delay. A plain reading of Section 35 of the Central Excise Act shows that an appeal filed after a period of six months before the Commissioner (Appeals) cannot be taken by him for decision on merits and has to be necessarily rejected as barred by limitation. He submits that when the Commissioner (Appeals) has no authority to condone the delay, the Tribunal should not condone the delay for filing the appeal before the Commissioner when the same is barred by statutory limitation. In this case, he relies upon the observations made by the Hon'ble Supreme Court in Civil Appeal No. 1852/79 in the case of Sakuru v. Tanaji. It was observed by the Hon'ble Supreme Court that the provisions of Limitation Act, 1963 apply only to proceedings before Courts and not to proceedings before Quasi-Judicial Tribunals or Executive Authorities. The limitation can only be waived by the Courts and not by the Tribunals nor by the Collector (appeals) nor by the Collector and others. Wherever there are specific proceedings to condone the delay under the relevant Act, that power can be exercised by the competent authority. The power under the Limitation Act, 1963 can, however, be authorised by the Courts only.
4. He also refers to the Civil Appeal No. 10445 of 1995 filed by A.P.E. Bellis India Ltd. against the CEGAT's ORDER C/208/95-B2 dated 7.4.1995, Hon'ble Mr. Justice S.P. Bharucha and Hon'ble Mr. Justice S.B. Majumdar dismissed the said appeal by upholding the Order of the Tribunal. The Appellate Tribunal in its Order in question had held that the appeal to the lower appellate authority had been filed after four years of the original order, which was well beyond the condonation period under Section 128 of Customs Act, 1962, and had been correctly dismissed, and there was no substance in the instant appeal which stood rejected and the Stay Application also dismissed. (Reported in A.P.E. Bellis India v. Collector - 1999 (106) ELT-A-70).
5. Shri Chattopadhyay, learned J.D.R. further refers to the decision of the Hon'ble Supreme Court in the case of Union of India v. Kirloskar Pneumatic Company reported in 1996 (84) ELT-401 (SC), wherein the Hon'ble Apex Court had observed that High Court under Writ Jurisdiction cannot direct the Customs Authorities to ignore the time-limit prescribed under Section 27 of the Customs Act even though High Court itself may not be bound by the time-limit of the said Section. It is also observed that High Court under Articles 226 and 227 is to effectuate the law and to enforce the Rule of Law and to ensure that authorities and organs of the State Act in accordance with Law. But these Articles do not clothe the High Courts for directing the authorities to act contrary to Law, particularly the Customs Authorities who are creatures of the Customs Act cannot be directed to ignore or act contrary to Section 27 of the Customs Act.
6. He further submits that Hon'ble Tribunal in the case of Jain Spinners Ltd. v. Collector of Central Excise, Aurangabad reported in 1996 (81) ELT-366 (tribunal) categorically observed that appeal filed beyond a total period of six months whereas Collector competent to condone a total period of six months only. The appeal is rightly rejected by the Collector as time-barred under Section 35 of the Central Excise Act, 1944. Hon'ble Tribunal has relied on the following case laws:-
1991 (56) ELT-612 1993 (63) ELT-285 1989 (42) ELT-132 1981 (8) ELT-592 (Guj.) The Hon'ble Tribunal has also observed that the appellant having a strong case for acceptance of appeal on merits will not be a sufficient cause for condonation of delay in filing the appeal. In this connection, the Hon'ble Tribunal has relied upon the case laws of State of Gujarat v. Sayed Mohd. Baquir El Edross in AIR 1981 (SC) 1921.
7. I have considered the submissions made from both sides. There is no dispute about the fact that the Commissioner (appeals), in terms of the provisions of Section 35 of the Act, has limited powers to condone the delay of three months, if the appeal is filed after the expiry of three months' period provided under the said Section for filing the appeal. As such, if the appeal has been filed after a period of six months from the date of receipt of the Orders, no jurisdiction lies with the Commissioner (Appeals) to condone the said delay and decide the case on merits. The appellants have contended that even if the appeal has been dismissed by the Commissioner (Appeals) on merits, the same can be taken up by the Tribunal and decided on merits, as held by the Tribunal in the case reported in 41-RLT-756. However, the question which arises is that the appeal h as been dismissed on the point of limitation itself, before the first appellate authority. Whether the Tribunal in such circumstances can take up the appeal on merits. It is the well-settled principle of law that what cannot be done directly should not be allowed to be done indirectly. Taking up the appeal by the Tribunal on merits would amount to defeating the very purpose of the provisions of Section 35F laying down the limited period upto which the condonation can be made by the Commissioner (Appeals). The effect of laying down of such a limited period of three months for condoning the delay is that if the appeal is filed after the said period, the same will not be entertained. The right of appeal is not an inherent right, but is one that is conferred by statute and has to be exercised strictly in conformity with the statutory provisions which create it. If the statute limits the time within which an appeal can be preferred, it has to be preferred within the period so limited. These are the observations made by the Hon'ble Delhi High Court in the case of Deen Dayal v. ITAT reported in 1986 (156) ITR-391.
8. The above discussions show that on the expiry of the period of six months, the right to file the appeal before the Commissioner (Appeals) gets extinguished. The same cannot be revived by filing appeal against an Order of Commissioner (Appeals) rejecting the appeal as time-barred, before the Tribunal.
9. I also take note of the latest decision of the Chennai Bench of the Tribunal in the case of Divisional Engineer, Telecom v. Commissioner of Customs, Chennai reported in 2001 (46) RLT-398 (CEGAT-Chennai). The Tribunal in para 5 of their Judgment has referred to another decision of C.E.G.A.T. as reported in 1998 (28) RLT-73 (CEGAT) and has observed that the said decision was given after taking into consideration several judgments of the Hon'ble Supreme Court. Paras 6 and 10 of the Tribunal's decision as reported in 28:RLT:73 (CEGAT) have been reproduced. Accordingly, after following the said decisions, the Tribunal has held that rejection of appeal by the Commissioner (appeals) on the ground that the same was filed after the period of six months, has to be upheld.
10. Inasmuch as there are contrary judgments on the disputed issue, I refer the matter to the Larger Bench on the following question:-
"Whether the Tribunal can consider the appeal on merits, when the same has been dismissed by the Commissioner (Appeals) as having been filed after the period of six months from the date of receipt of the Order, in terms of the provisions of Section 35 of the Central Excise Act, 1944.
11. Registry is directed to place the papers before the Hon'ble President for constitution of the Larger Bench.