Customs, Excise and Gold Tribunal - Delhi
Banta Singh Kartar Singh Iron & Steel ... vs Commissioner Of Central Excise on 8 April, 2003
Equivalent citations: 2003(88)ECC605
JUDGMENT V.K. Agrawal, Member (T)
1. This is an application filed by M/s. Banta Singh Kartar Singh Iron and Steel Rolling Mills for condonation of delay of 1634 days in filing the Appeal.
2. Shri Balbir Singh, learned Advocate, submitted that the Applicants manufactured rolling products of iron and steel which attracted Central Excise duty under Section 3-A of the Central Excise Act during the relevant period; that the Commissioner Central Excise provisionally determined the annual capacity of production under Order dated 27.3.98 which was made final by impugned Order dated 27.4.98; that the Applicants wrote a letter dated 8.9.98 to the Commissioner that their capacity had been determined without personal hearing and without appointing any technical Authority and requested to determine the annual capacity after extending the personal hearing; that the Assistant Commissioner issued show cause notice dated 30.10.98 demanding duty for the period April to June 1998; that the Commissioner also appointed technical Authority for verification for technical parameters of Rolling Mills for determination of annual capacity under letter dated 18.5.99; that the Assistant Commissioner issued attachment notice on 14.6.2002 for recovery of duty alongwith interest against which they filed CWP No. 9629/2002 before the High Court of Punjab & Haryana challenging the attachment notice and Order dated 27.4.98. Learned Advocate/ further, mentioned that Hon'ble High Court of Punjab & Haryana under Order dated 13.1.2003 observed that Order dated 27.4.98 is appealable under Section 35-B of the Central Excise Act which remedy has not been availed by the petitioner. The High Court also observed that the plea which is now sought to be raised before the High Court could be raised in Appeal. Learned Advocate, further, mentioned that in pursuance to the High Court's observations, they have filed the Appeal in January 2003 and requested that the delay in filing the Appeal may be condoned for the reasons that no appealable Order was passed by the Commissioner which could have been appealed before the appropriate Authority by them as impugned Order was not having any preamble directing them to avail remedy of Appeal. He also contended that appellants were holding the bona fide plea that the Order fixing annual capacity of production is not an appealable Order in view of the Tribunal's decision in the case of Shivanshi Ferrous Pvt. Ltd. v. Commissioner of Central Excise, Kanpur, 1999 (106) ELT 366 (Tri). He therefore, requested that the delay may be condoned.
3. Opposing the prayer, Shri D.N. Chaudhary, learned Senior Departmental Representative, submitted that the Order fixing the annual capacity of production is an appealable Order against which many appeals have been filed in this Tribunal itself and then decided by the Tribunal; that the decision in the case of Shivanshi Ferrous cannot be relied upon by the Appellants for condoning the inordinate delay of 1634 days in filing the Appeal; that further in Shivanshi Ferrous case, Tribunal observed that it was not inclined to agree with the directions of the Commissioner through the Assistant Commissioner that the Order passed under Sub-Section (2) to Section 3-A is an appealable Order and he was duty bound to redetermine the annual capacity under Section 3-A(4) if there was request for redetermination. Learned Senior Departmental Representative submitted that the ratio of this decision cannot be applicable for condoning the delay of 1634 days.
4. We have considered the submissions of both the sides. It is not in dispute that the Commissioner finally determined the annual capacity of production under Order dated 27.4.98 which was received by the Appellants on 29.4.98. The Appeal filed by them against the said Order has been received in the Registry of the Tribunal on 27.1.2003 which is much beyond the time limit specified in Section 35-B of the Central Excise Act. The delay of more than four years in filing the Appeal has not been satisfactorily explained by the Appellants. We also observe that the Hon'ble Court of Punjab and Haryana has also observed that the Order was appealable one and they refused to exercise their discretionary jurisdiction under Article 226 of the Constitution since the alternative remedy had not been resorted to by the Appellants. The Writ Petition filed by them was dismissed by the High Court. No doubt High Court observed that, "it will however be open to the petitioner to pursue the Appeal, if so advised." However, the Hon'ble High Court has no where ordered that the delay in filing the Appeal will be admitted by the Appellate Tribunal without raising any objection on the delay in filing the Appeal. We find no justification in filing the Appeal late by 1634 days. And, accordingly, we reject the application for condonation of delay. Consequently the Appeal is also dismissed.