Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Speedway Rubber Co. on 30 June, 1992
Equivalent citations: 1993(66)ELT425(TRI-DEL)
ORDER S.L. Peeran, Member (J)
1. The Revenue had filed an appeal in E/A No. 2379/91-C. They realised that they had to file two more supplementary appeals as the Collector (Appeals) had disposed of by his order, 3 orders-in-original dated 31-7-90 passed by the Assistant Collector of Central Excise, Jullundur.
2. The short point that arises for consideration is as to whether the delay in filing the supplementary appeals can be condoned when the main appeal is in time. The Revenue has stated in this COD application that they had filed an appeal against common order-in-appeal No. 372-374/CE/CHD/90 dated 12-3-1991 on 14-6-1991. It is stated that later it was clarified that separate appeals needs to be filed against a common order-in-appeal dated 12-3-1991. They have relied on the ruling rendered by the Tribunal in the case of Ekantika Copiers P Ltd. v. Collector of Central Excise, Meerut [Misc order No. 158/91 Bl dated 22-3-1991 -1991 (56) E.L.T. 350 (Tribunal)]. The ruling of the Larger Bench has decided that separate appeals should be filed when separate numbers are shown in the order-in-appeal. Therefore, it is contended that two supplementary appeals are filed against the order-in-appeal which has disposed of three orders-in-original. They have prayed for condonation of delay. The application is accompanied by affidavits of Shri Y.D. Banga, Assistant Collector of Central Excise who has signed the COD applications. These supplementary appeals have been filed on 16th August 1991. The date of communication has been shown as 14-3-1991. Thus, there is a delay of about 62 days.
3. We have heard Smt. Ananya Ray, learned SDR for the Appellants and Sh. Vinod Aggarwal, learned Advocate for the respondents. The learned DR has relied on the Larger Bench decision and. also the practice of the Tribunal to condone the delay in filing the supplementary appeals if the main appeal is in time. The learned Advocate appearing for the respondents opposed the prayer for condonation of delay on the ground that the indulgence was patent on the face of the record inasmuch as, the authorisation given to the Asstt. Collector had clearly stated that 3 appeals have to be filed. Despite this authorisation, the Asstt. Collector had not chosen to file three appeals and therefore, there was no reason to condone the delay in the face of no explanation coming forth from the Revenue for the delay caused in filing the supplementary appeals.
4. We have carefully considered the submissions made by both the sides and perused the records. The question that arises for our consideration is as to whether the delay in filing the supplementary appeals are to be condoned as per practice adopted by the Tribunal and in difference to the ruling of this Tribunal as rendered in the case of C.C.E. v. Gujarat Phenolic Synthetics P. Ltd. 1991 (33) ECR 154. A similar plea had been raised in this appeal. The majority of the Members had taken a view as per para 2 of the order which is noted below -
"The Collector of Central Excise, Vadodara has subsequently filed the supplementary appeal registered as No. 2689/80-C alongwith the application for condonation of delay. When the application was called, none was present for the respondents who have, however, furnished written submissions dated 17-7-1990 opposing the condonation. Shri Narasimha Murthy, the learned DR supports the COD application and submits that as the Collector (Appeals) had passed a common order, and since the consolidated appeal against it was itself admittedly filed in time, the delay in filing the supplementary appeal should be condoned. The respondents say that the two orders-in-original passed by the Asstt. Collector involved the same issue is factually incorrect. According to them, the two issues are distinct, one on approval of classification list and the other related to eligibility for taking credit of input duty under set off notification No. 201/79. They also point out that the general practice has also been to file separate appeals before the Tribunal in such cases. The respondents contend that since the present supplementary appeal has been filed after four years, in view of their submissions, sufficient cause has not been shown for condoning the delay, according to them."
The undersigned had taken a minority view in the said ... and the view expressed in para 6(b) to 15 is given below -
"It is now well settled by the rulings of this Tribunal as noted by learned Member (T) that parties have to file separate appeals against the orders-in-original. The fact that separate appeal with COD application clearly suggests that the COD has to be examined on its own merits and that the earlier appeal filed will not be an automatic reason for condoning the delay unless sufficient reasons assigned in that respect are given.
7. Rights accrued to an assessee on account of the Revenue not preceding to file an appeal by accepting the order of Collector (Appeals) cannot later, after a lapse of time, be allowed to be snatched away from the assessee by permitting the Revenue to persue the appeal remedy by condoning the delay especially where there are serious latches and negligence on their part. The condonation of delay has to be exercised with due care and caution and in such a way as not to take away the rights accrued to the assessee or the Revenue as the case may be. In the circumstances of long delays, the cause shown should be sufficient meaning thereby that the party should show that there is no negligence and latches on his part in filing the appeal and in persuing their remedy. The party should show that such delay by condonation will not result in any damage or loss to the opposite side nor will it take away his rights accrued on account of non-filing of the appeal in time. The party should also show that status quo of rights had been maintained during the period of delay. This Tribunal had laid the guidelines for condonation of delay after examining the various citations of Supreme Court in the case of Mahabir Metal Converters, Thane v. Collector of Central Excise, Bombay - 1986 (7) ETR 375 the Bench comprising of Shri I.J. Rao, Member (Tech.), Shri K.S. Venkataramani, Member (Tech.), Shri G.P. Agarwal, Member (Judl.) and the guidelines are as under -
"Before we proceed to consider the merits of the case, it would be useful to refer the following principles which are of general application -
(a) that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing an appeal sufficient cause must be established that because of some event or circumstance before limitation expired it was not possible to file the appeal within the time. No event or circumstance arising after the expiry of the limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of the limitation which may further delay the filing of the appeal. But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation as held by the Supreme Court in the case of Ajit Singh v. State of Gujarat AIR 1981 SC 733;
(b) that the party has to satisfy that he had sufficient cause for not filing the appeal within the prescribed time that is to say the explanation must cover the whole of the period of delay;
(c) that the ignorance of law by itself is not a ground for condonation of delay;
(d) that a mistake by a lawyer is a good ground for condoning the delay provided it is honest, though wrong. However, it cannot always be put in a straight jacket of a general doctrine of invariable and universal application. In other words, it should not be an attempt to save limitation in an underhand way or an advice to cover ulterior purpose;
(e) a litigant should not be easily permitted to take away a right which has accrued to his advisory by lapse of time; and
(f) that proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction and that even after the sufficient cause is shown, a party is not entitled to the condonation of the delay in question as a matter of right and the court of authority hearing the appeal has no power to extend the time as a matter of indulgence".
8. Again this Tribunal has dismissed the appeals as barred by time in the case of Collector of Central Excise v. F.G.P. Ltd. as reported in 1988 (38) E.L.T. 712 applying the rulings of the Supreme Court as laid down in the case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) E.L.T. 739 and that of Ramlal and Ors. v. Rewa Cod Fields Ltd. reported in (1962 AIR SC 361). Likewise this Tribunal did not condone the delay in the case of Kanoria Wisconsin Centrifugal Ltd. v. Collector of Central Excise reported in 1990 (48) E.L.T. 596 .
9. The learned Member (T) has relied on the ruling of the Collector (Appeals) in the case of Collector, Land Acquisition, Anantnag v. MST Katiji 1987 (28) E.L.T. 185. In this case, there was a delay of only four days. Therefore, this Tribunal in the case of Kanoria Wisconsin Contrifugal Ltd. (supra) has observed that this ruling will not apply for long days of delays and that later ruling of the Supreme Court as recorded in the case of Union of India v. Tata Yodogawa Ltd. (supra) would be more appropriate. In the case of Collector of Customs v. Carborandum Universal as reported in (1990 (47) E.L.T. 61), this Tribunal held that initial decision not to contest the order of Collector (Appeals) but subsequently changed their mind to file appeal is not sufficient ground for the COD. The broad principles of condonation of delay and the law of limitation has been discussed in few of the cases by Supreme Court which are noted below.
10. Supreme Court has observed in Sangram Singh v. Election Tribunal, Kotah as reported in AIR 1955-425 at paras 16 and 17 -
"It is well settled that laws of procedure are something designed to facilitate justice and further it ends not a penal enactment for punishment and penalties not a thing designed to trip people up. The technical construction of Sections that leaves no room for reasonable elasticity of interpretation should therfore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it." Our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that effect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large and subject to that proviso our laws of procedure should be construed wherever that it is reasonably possible in the light of that principle".
11. In Nav Rattan Mal v. State of Rajasthan as reported in AIR 1961 SC 1704, the Supreme Court observed at para 8 as follows -
"(8) It is no doubt that Lord Kenyan described statutes of limitation as 'Statutes of repose' (vide per Dallas C.J. in To/son v. Kaye (1822) 3 Br & B 217 at page 223) and Bramwell B as "Statutes of Peave (Hunter v. Gibbon) (1956 26 LJ Ex 1 at page 5) though sometimes contrary opinions have been expressed. In re - Baker, Cotton C.J. observed that pleas of limitation would never be looked upon with any favour (1890) Ch D 262 at page 270) since they are used to defeat debts clearly due. It is however, unnecessary to examine further the theory underlying statutes of limitation. We shall proceed on the generally accepted basis that they are designed to effectuate a beneficient public purpose viz. to prevent the taking away from one what he has long been permitted to consider him own and on the faith of what he plans his life, habits and experience. This however does not militate against there being a rational basis for a distinction being drawn between the claims of the state and the claims of the individual in the matter of a provision of a war of limitation for enforcing them."
12. The Supreme Court in Randal v. Rewa Coalfields Ltd. reported in AIR 1962 in para 12, page 365 has observed -
"It is however necessary to emphasise test even after sufficient cause has been shown that a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition proceeded for the existence of the discretionary jurisdiction vested in the Court by Section 5 (Limitation Act). If sufficient cause is not proved nothing further has to be done, the application for the condoning of delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all facts and it is at this stage that diligence of the party or its bona fides may fall for consideration but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fide or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14. In the present case there is no difficulty in building that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellants lack of diligence during the period of limitation no other fact had been adduced against it. Indeed as we have already pointed out, the learned Judicial Commissioner rejected the appellant's application for condonation of delay only on the ground that it was appellants' duty to file the appeal as soon as possible within the period prescribed and that in our opinion is not a valid ground."
12A. In the case of Rajender Singh v. Bantn Singh as reported in (1973 SC 2537) at para 17, the Supreme Court of India observed -
"The policy underlying statutes of limitation spoken of statutes of repose or of peace has been thus stated in Halsbury's Law of England Vol. 24 p. 181 (para 330) "330-Policy of Limitation Act. The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation namely (i) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a state claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
The objection of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or latches".
13. The Supreme Court in Ajit Singh v. State of Gujarat reported in AIR 1981 733 para 6, has observed that -
"Now it is true that a party is entitled to wait until the last day of limitation for filing an appeal but when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible to file the appeal within the time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing of the appeal. But what the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation."
14. In the Union of India v. Tata Yodogawa Ltd. (supra) ECR 19 ECR 569, SC : ECR C CUS 1411 SC, the Supreme Court has held that inter-departmental correspondence and processing is not a sufficient ground for condonation of delay.
15. The reasons given by the Revenue are not sufficient for condoning the delay in this case. It would seriously prejudice the rights of the assessee. The Revenue had not made out any grounds against the order of the Collector (Appeals) while applying the ratio of this Tribunal in 1983 (14) E.L.T. 2049 thereby clearly indicating that they had accepted this portion of the order pertaining to classification of the product for the period after 1983. The grounds made out clearly indicate this. It pertains to availment of credit under Notification No, 201 /77 which was subject matter of order-in-original No. 33/83 which had been alone the subject matter of dispute in A No. 2763/86-C. Even in this appeal No. 2689/80-C, no grounds have been made out against the Collector (Appeals) reasoning pertaining to application of the ratio of this Tribunal as stated above. Therefore, the ruling of the Supreme Court as rendered in Collector, Land Acquisition, Anantnag v. MST Katiji (supra) ECR 19 ECR 565 SC; ECR C Cus 1335 SC relied upon by the learned Member (T) is not at all applicable to the facts and circumstances of this case.
Therefore, applying the ratio of the ruling of the Hon'ble Supreme Court and the Tribunal in the above noted citations, I order for dismissing the COD application and consequently the appeal is also dismissed."
5. A similar contention as raised in this appeal, was raised before a Three Member Bench in the case of Collector of Customs, Bombay v. Century Enka Limited, In this appeal by Misc. order Nos. 34 to 36/91-C dated 17-12-1990 4-1-1991, the majority took the view in para 5 as follows -
"COD applications No. C/COD/797/90-C and 801/90-C have been filed by Revenue in the S.A. Nos. C/3052/90-C and 3053/90. These supplementary appeals were filed in accordance with the practice prevailing in this Tribunal as the impugned order-in-appeal disposed of three appeals filed before the Collector of Customs (Appeals). In cases, where the main appeal is filed within the statutory time-limit, but the supplementary appeal is filed after expiry of the three months' time-limit, this Tribunal has been condoning the delay in filing the supplementary appeals. The learned advocate has argued that in the present case the main appeal itself was filed after this statutory time-limit and the supplementary appeals were filed after being pointed out by the Tribunal. The department was supposed to know that in such cases the supplementary appeals were to be filed. They should have acted accordingly. Since this was not done, the COD applications in the supplementary appeals should not be allowed in the present case. We have considered this argument of the advocate. After we have condoned the delay in filing the main appeal, we are of the view that the delay in filing the supplementary appeals should also be condoned. Accordingly, we allow these two COD applications also."
6. The undersigned agreed to follow the majority view but however, after pointing out his reasoning given in the case of Gujarat Phenolic, had recommended the matter to a Larger Bench to decide on the point of condonation of delay. The reasoning given by the undersigned in paras 6 to 8 is given below -
"However, I wish to add that the filing of supplementary appeals, when main or consolidated appeal is pending, should not be an automatic reason for condoning the delay; but the COD has to be examined on merits to find out if there has been sufficient reasons to condone the delay and that there has been any latches on the part of the appellants or not or else, serious prejudice will be caused to the contesting parties. The law laid down by the Supreme Court on this aspect of the matter is binding on all courts and Tribunals and under Article 131 of the Constitution of India and hence the need to re-examine this issue in the light of the rulings of the Supreme Court. Any practice accepted and laid down by the Tribunal has to be in keeping with the well laid down judicial norms by the legislature and the higher courts and in the ends of justice. It is true that procedural laws are handmade in the effective administration of justice but procedural laws are equally important to safeguard the rights of the citizens and to bring in uniformity and certainty in the administration of justice.
The appellant-Revenue have not given sufficient reasons to condone the delay and that there are latches on their part. The reasons assigned in the application for COD in Supp. Appeal are not sufficient and would merit dismissal by applying the ratio of the Supreme Court decision rendered in the case of Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) E.L.T. 730 (SC). As the Tribunal has by more than one decision, allowed the Suppl. appeals solely on the ground of the main or consolidate appeal having been filed in time, I have to agree for condoning the delay in these appeals also, in view of the Tribunal ruling on this point and in keeping with the judicial decoram to accept the bench decisions in the matters.
I recommend this matter to be referred to the President for constituting a larger bench to review the earlier Tribunal's decision on the question of COD in filing the Suppl. appeals, in the light of the well laid down law by the Supreme Court and various High Courts on this aspect of the matter. As in the present position we have to condone COD in every supplementary appeal and the filing of supplementary appeal and considering of COD has become a mere formality now. The need to examine this issue by larger bench of Five Members is further necessitated by the fact that the issue of filing supplementary appeal against a common order is understood to be seized on this issue by Five Member Bench in A. No. 2454/84-B1 in the case of Ekantika Copiers v. Collector Central Excise, Meerut. The Andhra Pradesh High Court in the case of Commissioner of Income-tax v. Shri Venkateswara Talkies 1985 (20) Taxman 47 has held that in relation to tax matters, one single appeal is maintainable against a common order passed by the authorities. A similar view has also been taken by the Calcutta High Court in the case of Commissioner of Income-tax v. Rupa Traders 1979 (118) I.T.R. 412. Even the Tribunal has expressed similar view in the case of Unique Pharmaceutical Laboratories, Bombay v. Collector of Customs 1983 (12) E.L.T. 628 WRB; Bharat Petroleum Corp. Ltd. v. Collector of Customs, Bombay 1988 (33) E.L.T. 563, Universal Automatic & Ancilliary Ltd. v. Collector of Central Excise & Customs 1990 (47) E.L.T. 79 WRB. In view of these conflicting views on the question of filing single appeal and supplementary appeals, as also on COD in supplementary appeal, the need for settling the issue by Five Member Bench has become necessitated. Therefore, I recommend the Bench to refer this issue to the President for constituting a larger Bench of Five Members to settle this controversy also."
7. However, the majority overruled the undersigned's prayer for reference to the Larger Bench by holding in paras 9 and 10, as under -
"So far as the question of condoning delay in filing the main appeal and also the supplementary appeals in the present cases is concerned, S/Sh. D.C. Mandal and N.K. Bajpai, Members (Technical) have already decided to condone the delay and allow the condonation applications. From the last sentence of paragraph 7 of the order written by Shri Peeran, Member (Judicial), it appears that he has also agreed with the view of the other two Members for condoning the delay in these appeals. Accordingly, the delay in filing the main appeal as well as supplementary appeals stands condoned.
As regards paragraph 8 of the order written by learned brother Shri Peeran, he has indicated that the issue regarding the question whether there should be any supplementary appeal/appeals in the case of a Omnibus impugned order-in-appeal of the Collector (Appeals) disposing of more than one appeal filed before him, has been referred to a Five Member Bench in A. No. E/2454/84 in the case of Ekantika Copiers v. Collector of Central Excise, Meerut. If the Five Member Bench decides in that case that only one appeal need be filed in such cases, the question of filing supplementary appeals will not thereafter arise. Therefore, a reference to a Five Member Bench as suggested by learned brother Shri Peeran does not seem to be necessary at this stage."
8. In this appeal, a similar situation has arisen. The majority view in the case of Gujarat Phenolic (supra) as well as the majority view in M/s. Century Enka Limited is that where the main appeal is in time, the supplementary appeals are to be condoned as a matter of course. However, as the undersigned had pointed out in both the above rulings in the minority order that the condonation cannot be done as a matter of course, but merit of each case has to be viewed. In this case also, there is a valid ground taken by the respondent and has been pointed out that there are no reasons to condone the COD application when the latches and indulgence are patent on record and no reasons have also been shown for not filing the supplementary appeals, when the Collector had clearly given instructions to do so in his authorisation under Section 35B(2) of Central Excises and Salt Act, 1944. As the Tribunal by their majority view has expressed the view that the delay in filing the supplementary appeals is to be condoned, the undersigned is not in agreement with such findings as it would deviate the right of the opposing party to contest the COD application. In the circumstances, we recommend this Bench to refer this issue to the President for constituting a larger Bench of 5 Members to settle this controversy as per Section 129-C of the Customs Act, 1962. Ordered accordingly.
9. [Order per: G.P. Agarwal, Member (J)]. - I have had the advantage of going through the erudite order proposed by my learned Judicial Member, but I have failed to persuade myself to agree with him.
10. Admittedly, the appellants were required to file three separate appeals against the common impugned Order-in-Appeal whereby the learned Collector (Appeals) had disposed of three different Orders-in-Original. It is not in dispute that the Collector of Central Excise, Chandigarh, who is the appellant before us, had authorised the Assistant Collector of Central Excise, Jullun-dur, to file three appeals against the impugned Order-in-Appeal before this Tribunal in terms of Section 35B(2) of the Central Excises & Salt Act, 1944 on his behalf. It is also not in dispute that instead of filing three separate appeals, as directed by the appellants, the Assistant Collector had earlier filed only one composite appeal bearing No. 2379/91-C within time and subsequently, filed two supplementary appeals with the present two captioned applications for condonation of delay in filing these two supplementary appeals. In this backdrop, the moot question before us is as to whether the delay in filing the two supplementary appeals is to be condoned or not.
11. From the record, it is clear that, admittedly, three separate Order-in-Original were passed by the Assistant Collector. Against these orders, three separate appeals were filed by the respondents before the Collector (Appeals) and since the issue involved in all the three appeals was common, he heard all these three appeals together and disposed of by the impugned common Order-in-Appeal. Against this common Order-in-Appeal, a composite appeal was filed in time and the same is pending for disposal before this Tribunal. This Tribunal is taking a liberal view while dealing with such application for condoning the delay in filing the supplementary appeals is apparent from the order proposed by my learned Brother. That apart, I find that in the case of Wadhya Mal v. Prem Chand Jain, AIR 1982 SC 18, in such a situation, the Apex Court had condoned the delay only on the ground that the Award (judgment), which the appellant was challenging was already under appeal by the other respondents observing that it would be appropriate to give an opportunity to the appellant to get his appeal adjudicated on merits instead of taking a very strict view of the matter. In that case, the Award was made by the II Additional Motor Accidents Claims Tribunal, Meerut on 31-3-1977. Shri Wadhya Mal, who was the appellant before the Apex Court, was the owner of the truck involved in the accident in which Respondent No. 1 was injured. Respondent No. 1 and Respondent No. 2, Insurer, preferred their separate appeals before the Allahabad High Court against the aforesaid Award and during the pendency of these two appeals before the Allahabad High Court, Shri Wadhya Mal, owner of the truck, also preferred his appeal against the same Award before the Allahabad High Court, which was dismissed on the ground that it was barred by limitation. This conclusion was recorded after the application of the appellant for condoning delay, was rejected. On appeal, by Shri Wadhya Mal before the Apex Court, the Supreme Court set aside the order of the High Court rejecting the application for condoning the delay and subsequently, the order of dismissal of the appeal as time barred and condoned the delay in preferring the appeal and directed the High Court to decide it on merits alongwith other appeals preferred by the injured and insurer, as stated above observing as follows :
"5. In view of the fact that the award dated 31-3-1977 is under challenge in two appeals, it is just and proper that the appeal of the present appellant may also be entertained and may be disposed of on merits along with aforementioned two appeals. May be, there was some delay in preferring the appeal by the present appellant. ...We need not take a very strict view of the matter and we consider it appropriate to give an opportunity to the appellant to get his appeal adjudicated on merits on the only ground that the award which he seeks to challenge is under appeal by Respondent No. 1 and Respondent No. 2. Guided lay these special facts of the case, we allow this appeal, set aside the order of the High Court rejecting the appeal of the appellant on the ground that it was barred by limitation. We condone the delay in preferring the appeal and direct that the appeal be admitted to file and heard and disposed of alongwith appeals preferred by Respondent No. 1 and Respondent No. 2 pending in the High Court." [Emphasis mine]
12. Following the ratio of the said decision rendered by the Apex Court in the case of Wadhya Mal v. Prem Chand (supra), I am of the view that though the Collector of Central Excise, Chandigarh, on whose behalf the Assistant Collector has first filed the composite appeal instead of three appeals, as directed by him (Collector) and on being pointed out by the Registry, these two supplementary appeals have been filed along with the present two applications for condonation of delay. I should not take a very strict view of the matter guided by the special facts of the present case that the very common impugned Order-in-Appeal is pending for adjudication before this Tribunal in the composite Appeal No. E/2379/91-C filed by the same appellant against the same respondents. In other words, it is an appropriate case to give an opportunity to the appellant to get his supplementary appeals adjudicated on merits only on the ground that Order-in-Appeal, which he seeks to challenge in these two supplementary appeals, is already under challenge in the said composite appeal No. E/2379/91-C.
13. In the result, I allow both the applications for condonation of delay and condone the delay in filing the present supplementary appeals.
P.C. Jain, Member (T)
14. I have carefully perused the orders proposed by the two Ld. Brothers S/Sh. S.L. Peeran and G.P. Agarwal. Whether there is any sufficient cause for presenting the appeal late is always a matter of appreciation of evidence, facts and circumstances of each case. No general rule, in my view, can be laid down nor it appears to have been laid down in the bench decision in case of Ekantika Copiers v. Collector of Central Excise, Meerut referred to in the judgment of Shri S.L. Peeran that in all cases, delay in filing supplementary appeals must invariably be condoned. In the present case on the facts and circumstances available herein, I agree with the order proposed by the Ld. brother Shri G.P. Agarwal, Judicial Member. Consequently I allow both the applications for condonation of delay in respect of the supplementary appeals filed by the Department.
G.P. Agarwal, Member (J) In view of the majority opinion, both the applications for condonation of delay are allowed.