Bombay High Court
N.B. Golangada vs Union Of India And Ors. on 1 January, 1800
Equivalent citations: 1978(2)ELT61(BOM)
JUDGMENT
1. By this petition under Article 226 and 227 of the Constitution of India, the petitioner seeks to challange the order dated May4, 1967 passed by the Assistant collector of Central Excise, kolhapur division, which order was confirmed in appeal by the collector, Central Excise, Poona, and also by the government in revisional application, whereby he was directed to pay Central Excise duty amounting to Rs. 1,16,218,48 P. under Rule 9(2) of the Central Excise rules, 1944, on 2,94,970.74 sq. metres of coton fabrics produced by him on the payment of Central Excise duty from the manufacturing premises in contravention of Rules 9, 43,47,48,52,52A,53 and 54 of the Central Excise rules, 1944; and to pay the duty amounting to Rs. 46.50 at the appropriate effective standard rate under Rule 9(2) Of the Central Excise rules, on 118 sq. metres, of cotton fabrics manufactured by him on the powerlooms standing in the name of Smt. Aminabai M. Vakil and stored in an unapproved premises for eventual disposal withjout payment of duty in contravention of the Central Excise rules, 1944; and also a personal penalty of Rs. 250 was imposed on him under the said Rule 9(2) for manufactureing cotton fabrics on the powerlooms licensed in the name of other persons and removing the cotton fabrics without payment of Central Excise duty at the appropriate rate in contravention of the Cnetrla Excise Rules, 1944.
2. Having received certain information the Assistant Collector, Central Excise, Kolhapur division, Respondent No.3 herein, issued a show-cause notice dated February 2, 1967, calling upon him to show cause as to why the cotton fabrics mentioned in the annexure to the notice and alleged to have been prodeced and disposed of without payment of appropriate Central Excise duty leviable thereon, as also, as to why the cotton fabrics as shown in the annexure to the notice and alleged to have been produced and stored in premises other that the approved store-room for eventual removal without payment of the appropriate Central Excise Duty, should not be charged to duty under Rule 992) of the Central Excise rules 1944, as also why the petitioner should not be further made liable for penalty under rule 992), 52(5), 210,26 of the said Rules. Along with the said show-cause notice, the petitioner was supplied with copies of documentry eveidence on which reliances was sought to be placed by the Department in support of the allegations against the petitioner. after. some corresponence between the petitioner and respondent No. 3 in connection with the supply of certain copies of staements required by the petitioner, as ex parte order against the petitioner directing him to pay the duty as well as the penalty came to be passed by the respondent No. 3 by his order dated May4, 1967. In spite of the show-cause notice, the petitioner did not file any written-statement did he appear before respondent No. 3 to give his explanation or to show cause, and therefore, the said ex parte order against the petitioner was passed by the repsondents No. 3 on May 4, 1967. This order was served on the petitioner by registered post on May 5,1967. Thereafter, waiting for three m-onths, on August 5, 1967, the petitioner, sent by registered post an appeal before the Colectore of Central Excise which was received post an appeal before the collectore of Central Excise which was received by him on August 7, 1967, that is, three days after the expiry of the limitation of three months prescribed under section 35 of the Central Excises, and Salt act 1944. On October 30,1967, the collector of Central Excise, Poona, respondent No. 2 herein, dismissed the appeal filed by the petitioner on the ground that it was barred by limitation. Aggrieved by the said order, onDecember, 4, 1967, the petitioner submitted a petition to the governement to consider his case sympathetically and making a grivance that his appeal was rejected as time barred only because of delay of a couple of days, which, according to him, was due to his being busy with a court cast at Bombay. Thereafter on April 22, 1968, the petitioner preferred a regular revisional application under sectiuon 36 of the said Act challenging the rder in appeal passed by the Collector, Central Excise, Poona. On January 17, 1969, the government of India rejected the revision application filed by the petitioner on the ground that they did not see any reason for interferring with the Collector's order in appeal which was rejected as time-barred. This order referred to the application of December 4, 1967 sent by the petitioner to the Joint Secretary of the Government of Inida for sympathetic consideration but did not specifically refer to the revision application dated April 22, 1968 filed by the petitioner. However, the said order specifically stated that the petitioner's revisional application was rejected by the government of India. After the dismissal of the revisional application of August 133, 1969, the Tahsildar, Hatkanangale, called upon the petitioner to deposite the amount of Rs. 1,16,514.99 P. recoverable from him under the impugned order passed by the Assistant collector Central Excise, Kolhapur. the petitioner again move in the matter by applying for stay to the Revenue collector as well as by approaching the Joint Sectrtary to the Government of india, but ultiomately, on September 15, 1969, he was informed by the Joint Secrtary to the government of Inida that his case was disp[osed of by the goverment's order dated january 17, 1969 which was already communicated to him. the petitioner has therefore, preferred this Special Civil application challenging the aforesaid order passed against him January 17,1969.
3. It is then contended by the counsel that the collector, Central Excie, was wrong in holding that the appeal filed bythe petitioner was barred by limitation. In any event, it was submitted that there was a delay of only 2 or 3 days and should have been condoned. In this connection, it was further submitted by him that the limitation for preferring the appeal by the petitioner on tha tday. On these facts it was the contention Mr. Pratap that the appeal should be deemed to have been filed on 5th and not on 8th of August when the registered packet reached the office of the Collector, Central Excise. Now section 35 of the Central Excises and Salt Act, 1944, which provides for appeals for appeals prescrobes the limitation of three months from the date of the impugned order. sub-section 91) of section 35 provides as under:- There is nothing in the said provision or any other provision of the Act or rules framed thereunder that such appeals can be filed by posting them. The post office has not been constituted as an agent on behalf of the appellate authority to received the appeals. In the absence of such a provision, it must be held that the appeal in the present case was filed on 8th August when the papers were actually received by the office of the Colector, Central Excise. there was, therefore, a delay of three days in filing the appeal. Thecollector was, therefore, justified in holding that the appeal was time barred.
4. Then the question arises as to whether the appellate authority is cometent in law to condone the delay in preferring the appeal. Here again neither in section 35 nor in any other provision of the Act or rules framed thereunder, there is any provision which empowers the appellate authority to condone the delay in preferring appeals. In the absence of such a provisiona, the Collector of Central Excise would have no power to condone the delay. reference was made to section 5 of the indian Limitation Act.1963, and it was urged that the Colector could have codoned the delay by calling for an explanation fron thepetitioner, and on being satisfied that there was reasonable cause for preferring the appeal beyond time. We are afraid, the provisiions of section 5 will not be applicable to appeals provided in the Central Excises and Salt Act, 1944, which is a special Act which provides for appeals and prescribes a special period of limitation for appeals. The authority exercising power of appellate authority under section 35 not a court and, therefore, theprovisions of section 5 could not be invoked. Morever, in view of the provision of section 29 also it cannot be said that the provisions of section 4 and 5 are attracted to appeal provided under section 35 of the Central Excises and Salt Act, 1944. In view of this legal position, the collector of Central Excise was justified in rejecting the appeal on the ground of limitation. the revisional authority has merely confirmed the order of the colecotr of the Central Excise, and we do not think that there is any justification for interfering in this petition.