Customs, Excise and Gold Tribunal - Delhi
Mahabir Metal Convertors vs Collector Of Central Excise on 20 December, 1985
Equivalent citations: 1986(6)ECR290(TRI.-DELHI), 1986(24)ELT39(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. This application for Condonation of Delay in presenting the Appeal No. 382/85-BI arises in the following circumstances.
2. The Order-in-Original No. V-Adj. (27) 15-17/81/1269 was passed by the learned Collector of Central Excise, Bombay-11 on 28-8-1984. Against this order, the appellants M/s. Mahabir Metal Converters filed an appeal which was received in the Registry on 12-2-1985 along with an application for Stay and application for Condonation of Delay. No affidavit was filed in support of the application for Condonation of Delay at the time of the filing of the appeal. In the application for Condonation of Delay, it was stated that the Order-in-original passed on 28-8-84 was served upon the appellants on or about 29-9-84 and since the appeal against the said order ought to have been filed before 29-12-1984, the delay in presenting the appeal be condoned.
3. The said application for Condonation of Delay came up for hearing, but on one ground or the other the case was adjourned. It is note-worthy that at one stage the appeal itself along with the application for Stay and Condonation for Delay was dismissed in default of appearance which was subsequently restored to file.
4. On 13-12-1985, when the case was called up for hearing the application for condonation of delay, Shri B.B. Gujral, learned counsel for the appellants filed an Affidavit of one Sri Nanji Ganji Hariya, said to be the ex-partner of the appellants in support of the application for Condonation of Delay.
5. We heard Shri B.B. Gujral, learned counsel for the appellants and Shri H.L. Verma, S.D.R. for the respondents on the application for Condonation of Delay.
6. In the application for Condonation of Delay filed with the appeal, it was stated that the appeal could not be filed in time due to unavoidable circumstances. The said unavoidable circumstances as stated by the appellants in their application arc extracted in extenso as below :
(i) "The Appellant filed a Writ Petition being No. 2548 of 1984 on 13-12-1984 in the matter. The said Writ Petition came up for hearing on 15-1-1985 and was disposed of with direction "to follow the alternative remedy" simultaneously granting a blanket stay for four weeks from the said date for filing the appeal.
(ii) Later on the Appellants consulted some advocates and obtained legal opinion about the feasibility of an appeal under Section 35B of the Central Excises and Salt Act, 1944. This has resulted in the delay."
7. However, in the affidavit filed on 13-12-1985, Shri Nanji Ganji Hariya describing himself as ex-partner of the appellants further stated that he being elderly person, suffering from breathing trouble and under constant medical treatment, stayed far away from the factory and despite such restraints and stress he could manage to collect all the materials essential for drafting the appeal in less than three weeks time after the passing of the order on 15-1-1985. It is pertinent to note that no Medical Certificate regarding alleged illness was filed in support of the contention of the alleged breathing trouble or the constant medical treatment. It is further pertinent to note that these averments were not made in the application for Condonation of Delay filed earlier with the appeal.
8. At the time of arguments, the learned counsel of the appellants, Sri B.B. Gujral advanced the following two contentions only :
(i) that since in the order dated 15-1-1985 passed by the Hon'ble Bombay High Court in the Writ Petition No. 2548 of 1984, there was an observation "the petitioner should follow the alternative remedy", there is sufficient cause for the appellants. In other words, according to the learned counsel, this observation amounts to sufficient cause ; and
(ii) that the appellants have a strong case for the acceptance of the appeal on merits and, therefore, the same should be regarded as a very good reason for the condonation of the delay.
The learned counsel for the appellants has not cited any Case Law on the point, though asked for.
9. After hearing the learned counsel for the appellants and S.D.R. for the respondents, we are of the opinion that the appellants has not made out a case for condoning the delay.
10. Sub-section (3) of Section 35B of the Central Excises and Salt Act, 1944 provides a period of three months for filing of the appeal against the Order-in-Appeal from the date on which the order is communicated to the party preferring the appeal. Sub-section (5) of the same section provides that Appellate Tribunal may admit an appeal after the expiry of the relevant period referred to in Sub-section (3), if it is satisfied that there was sufficient cause for not presenting it within that period. Admittedly, the impugned Order in Appeal was passed by the respondent on 28-8-1984 and according to the appellants himself, the said order was received on 29-9-1984. As such the appeal in hand should have been filed on or before 29-12-1984 but it was received in the Registry on 12-2-1985 by Registered Post, though it bears the date of drafting as 7-2-1985. Thus, clearly there is a delay of about one month and fourteen days.
11. 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 earlier, 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- A.I.R. 1981 S.C. 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 strait jacket of 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 adversary 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 or authority hearing the appeal has no power to extend the time as a matter of indulgence.
12. Bearing in mind the said principles, now we proceed to consider the application for Condonation of Delay.
13. In the application for Condonation of Delay filed along with the appeal, the appellant stated that the Writ Petition No. 2458 of 1984 which was filed on 13-12-1984 came up for hearing on 15-1-1985 and the same was disposed of with a direction to follow the alternative remedy. The copy of the said order dated 15-1-1985 is on record which reads as follows :
"Mr. N.R. Kantawala for the Petitioners. Mr. K.R. Balchandani for the Respondents. P.C. Rejected. The Petitioners should follow the alternative remedy. Respondents will not enforce the impugned order dated 27-9-1984 for four weeks from today."
On this premises the learned counsel for the appellant has argued that his client is entitled for condonation of delay because the words "the Petitioners should follow the alternative remedy. The respondents will not enforce the impugned order dated 27-9-1984 for four weeks from today" amount to sufficient cause. Further in the affidavit filed by the appellants at the time of hearing on 13-12-1985, Shri Nanji Ganji Hariya describing himself as an ex-partner of the appellants firm, has stated that there was a total delay of 37 days in filing the appeal out of which a period of 18 days was taken up in the High Court and the remaining 19 days were spent in consulting their Solicitors and drafting of the appeal, the stay application and collecting documentary evidence relied upon in the appeal. It was further stated that he being elderly person suffering from breathing trouble, under constant medical treatment, staying far away from the factory could not manage to collect all the material essential for drafting and filing of the appeal in less than three weeks' time.
14. At the outset, it is to be noted that it is not the plea of the appellants that the delay way due to wrong advice of the counsel or that the appellants were labouring under any mistake or misapprehension of law. On the other hand, at the time of hearing, we specifically asked the learned counsel for the appellant, Shri B.B. Gujral, Advocate whether the Writ Petition was filed in the High Court on account of wrong advice of the counsel or under any mistake or misapprehension of law to which Shri B.B. Gujral, the learned counsel for the appellants made a categorical statement that the Writ Petition was filed with open eyes knowing it well that the appeal lies to the CEGAT. In these circumstances, in our opinion, filing of the Writ Petition cannot be treated as a ground for condoning the delay and the contention of the appellants' counsel that the Hon'ble Bombay High Court directed the appellant to file the appeal by its order dated 15-1-1985 cannot be accepted because from the order reproduced above, it is clear that there was no such direction and the observation "the Petitioner should follow the alternative remedy" cannot be interpreted as a direction.
15. Even otherwise giving concession to the time consumed in riling the Writ and obtaining the order on 15-1-1985, the subsequent delay as explained by the appellants in the affidavit of their ex-partner cannot be condoned for the following reasons :
(i) He has not filed any medical certificate in support of his alleged breathing trouble or medical treatment ; and
(ii) The appellants is a partnership concern as is evident from the affidavit in which Shri Nanji Ganji Hariya had described himself as ex-partner of the appellant firm. In the affidavit he does not say that he was only looking after the case. He also does not say in the affidavit that there was no other adult partner or any other responsible officer of the appellants firm. He further does not say that there was no other person except him to collect all the materials essential for drafting and filing of appeal. In this connection, the decision of the Hon'ble Supreme Court in the case of Lala Bal Mukand v. Lajwanti-A.I.R. 1975 S.C. 1089 is on the point. Their Lordships observed in para 10 (page 1091) as follows :
"10. It is to be noted that in the Courts below, the appellant did not take up the plea that the delay was due to wrong advice of the Counsel or that the appellant was labouring under any mistake or misapprehension of law. The case then set up by him was that being a patient of heart disease he remained confined, under medical advice, to bed. He was fit enough to travel on the 10th February but for want of funds, he could not reach Lucknow from Delhi on the 11th February. He produced a post-dated medical certificate, but did not examine the Doctor concerned. The appellant had an adult son who used to look after the case. In these circumstances, it could not be said that the first appellate Court exercised its discretionary power perversely or illegally so as to warrant interference by the High Court in second appeal. We therefore negative the first contention."
(Emphasis supplied) In the affidavit there was a bald statement that the deponent could manage to collect all the materials essential for drafting the appeal in less than three weeks time but no details are given ; and
(iv) In the affidavit it is stated that there was a total delay of 37 days, inasmuch as the appeal ought to have been filed before 29-12-1984, that is to say within the three months from the date of communication of the impugned order on 29-9-1984. As stated earlier, the appeal was received in the Registry by Registered Post on 12-2-1985. Thus, there is a delay of more than 37 days, i.e., to say 44 days, but no explanation is forthcoming for the remaining days.
16. Further contention of the learned counsel for the appellants that the appellant have a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay, is wholly without substance in view of the law laid down by their Lordships of the Supreme Court in the case of State of Gujarat v. Sayed Mohd. Baquir El Edross-A.I.R. 1981 S.C. 1921. In para 3 of page 1921, their Lordships observed as follows :
"3. Mr. Phadke also contended that he had a strong case for the acceptance of the appeal on merits and that the same should be regarded as a very good reason for the condonation of the delay. The contention is wholly without substance. The abatement stands in the way of the appeal being heard on merits which cannot, therefore, be looked into."
17. In the result, we find that the appellants had not shown sufficient cause for the delay. Its application for Condonation of Delay is, therefore, rejected. Consequently, the Appeal No. 382 of 1985 also stand dismissed as time-barred.