Customs, Excise and Gold Tribunal - Delhi
Satish Chandra Prahlad Narain vs Collector Of C. Ex. on 24 May, 1989
Equivalent citations: 1989(24)ECR331(TRI.-DELHI), 1989(44)ELT589(TRI-DEL)
ORDER K.S. Venkataramani, Member (T)
1. This appeal is directed against the order dated 30-3-1988 passed by the Collector of Central Excise (Appeals), Delhi by which he had rejected the appellants appeal as time-barred.
2. Shri Gopal Prasad, the learned consultant appears for the appellants and submits that the Assistant Collector order in this case was received by them on 24-10-1986 but that they could file the appeal before the Collector (Appeals) only in December, 1987 and that this was because of the fact that they were pursuing their writ petition in the matter before the High Court and also before the Supreme Court and the Supreme Court decision was given on 5-10-1987. They have taken steps to file the appeal before the Collector (Appeals) thereafter. The learned consultant has urged that the appeal has been dismissed by the Collector (Appeals) without giving them an opportunity to explain the delay and they should be given such opportunity by remanding to case to that authority. He pointed out that in the order also the rejection as time-barred has been made with the observation that there is no proper explanation of the delay in filing the appeal. Shri Gopal Prasad further submits that the time taken by them in pursuing the case before High Court and Supreme Court should be excluded while calculating the time limit.
3. Heard Smt. V. Zutshi, the learned SDR or behalf of the department.
4. On a careful consideration of the submissions made by the learned consultant and the learned SDR, we find in this case that the Assistant Collector's order was received by the appellant on 24-10-1986 as per their appeal Memo, before the Collector (Appeals). The appeal before the Collector (Appeals) was filed by them on 4-12-1987, that is, after a period of 1 year 1 month and 10 days. According to Section 35A of the Central Excises and Salt Act, 1944 an appeal before the Collector (Appeals) has to be filed within 3 months from the date of the communication of the order appealed against, and the proviso to that section also lays down that the Collector (Appeals) may if he is satisfied that the appellants were prevented by sufficient casue from presenting the appeal within a period of 3 months may allow it to be presented within a further period of 3 months. Therefore the statute gives power to the Collector (Appeals) to condone the delay in filing appeal after the initial period of three months only to a maximum period of another 3 months; that is total of 6 months. The statute does not give any discretion thereafter to the Collector (Appeals) to condone the delay. When such is the legal position the argument that the Collector (Appeals) ought to have sought their explanation for the delay before rejecting the appeal as time-barred does not carry conviction. In fact we find that at one stage in the proceedings before the Departmental authorities the appellant had filed a writ petition before the Hon'ble Allahabad High Court which by its order dated 8-11-1985 directed them to pursue statutory appellate remedy open to them. The appellants thereafter filed another writ petition before the High Court subsequently and obtained an order in their favour on 23-1-1986, against which the department filed an application for recalling that order, as it was obtained by suppression of the fact that the court had already by an earlier order on 8-11-1985 rejected their writ petition. The Hon'ble High Court recalled the order of 23-1-1986, and the Supreme Court also upheld this order of the High Court on 5-10-1987.
5. There is no direction in order of the Supreme Court that the period spent in pursuing the remedy before the courts is to be excluded for purposes of limitation. Therefore in these circumstances, and in view of the legal position when the Appellate Authority constituted under statute has not been vested with any power to condone delay of more than 3 months, the rejection of the appeal as time-barred is correct. We are also of the view that when the Collector (Appeals) was dismissing the appeal as being beyond 6 months as time-barred, there is no necessity in such a situation, in view of the legal position stated out as above, to give a hearing in the matter. We do not find any substance in the appeal which is therefore rejected.