Customs, Excise and Gold Tribunal - Delhi
Plyboard Industries Ltd. vs Collector Of C. Excise on 18 July, 1994
Equivalent citations: 1994ECR577(TRI.-DELHI), 1994(73)ELT175(TRI-DEL)
ORDER G.A. Brahma Deva, Member (J)
1. This is an application filed by the applicants seeking for condonation of delay caused in filing the appeal. Number of days is not forthcoming in the application but we find that the impugned order was received by the applicants on 6-3-1991 and the appeal (EA-3) was filed in the office of the Registry on 15-1-1992.
2. List of dates and events given by the applicants during the course of the hearing on 12-7-1994 is as follows :-
--------------------------------------------------------------------------------
Sl. No. Date Event
--------------------------------------------------------------------------------
1. 27-2-1991 Order passed by the Collector of Central Excise, Chandigarh.
2. 8-3-1991 Order received by the appellants.
3. 9-5-1991 The appellants filed in the office of Collector of Central Excise (Ap-
peals), Chandigarh. The appeal was titled as 'Before the Collector (Appeals), Central Board of Excise & Customs, Sector-17, Chandigarh.
The appeal contained 18 pages.
Memo of appeal from page 18-10.
30-9-1985 Copy of Gazette of India taking
over Ply Board Industries Limited, Pampore.
Typed copy of Order-in-Ori
-ginal (Page 8-4).
Hand-written copies of balance-sheet,
for 31-3-1987
for 31-3-1988
for 31-3-1990.
4. 14-5-1991 Letter from Supdt. (Appeals) of Of-
fice of Collector (Appeals), Chan-
digarh returning the original
appeal papers as they pertain to
CEGAT, New Delhi with a request
to file in the office of CEGAT, New
Delhi.
5. 28-5-1991 Letter No. PBI/SLS/91/313 of the
appellants addressed to Collector
of Central Excise (Appeals), CR
Building I.P. Estate, New Delhi, re-
filing the papers as originally filed
before the Collector (Appeals),
Chandigarh.
6. 6-6-1991 Letter of the Supdt. (Appeals) of
Collector (Appeals), New Delhi ad-
dressed to Collector (Appeals),
Chandigarh with a copy to appel-
lants enclosing the appeal papers
which were mis-sent, for further
necessary action.
7. 20-6-1991 Appellants received the above let-
ter.
8. 12-6-1991 Date of receipt of appeals papers
by the office of Collector (Appeals),
Chandigarh from office of Collec-
tor (Appeals), New Delhi.
9. 17-6-1991 The appeal papers are returned by
the Supdt. (Appeals), Chandigarh
to the appellants.
10. 30-7-1991 Covering letter No. PBI/SLS/913
sent by Regd. Post addressed to
Assistant Registrar CEGAT, New
Delhi enclosing 17 pages of appeal
papers as originally filed with the
Collector (Appeals), Chandigarh.
11. 20-8-1991 Date of receipt of the above appeal
papers by Registry of CEGAT.
12. 26-8-1991 Letter of the Assistant Registrar
returning the appeal papers as sent
not being in Form E.A. 3, DD not
enclosed etc.
13. 25-12-1991 Appellant's letter No.
PBI/SLS/91/1203-04/11 ad-
dressed to Assistant Registrar,
CEGAT sent by Regd. Post enclos-
ing documents.
14. Date of receipt of above documents
by the Registry of CEGAT.
15. 19-11-1993 Appellants filed an application
alongwith an affidavit in support
of condonation of delay applica-
tion numbered as E/Misc/l202/
93-D containing 6 pages.
16. 12-4-1994 Appellants filed a date chart duly
signed by the Supdt. of Police, City
South, Srinagar indicating the
details of disturbances in the Val-
ley.
17. 26-6-1994 Appellants filed a further affidavit
explaining the re-filing of papers in
New Delhi."
-------------------------------------------------------------------------------
3. Shri Sridharan, learned counsel, appearing for the applicants submitted that there was neither negligence nor latches on the part of the applicants but delay has been caused due to various facts and circumstances. He said that appeal was presented in time but before the Collector (Appeals), Chandigarh. The said appeal was returned by the Superintendent (Appeals) of Office of Collector (Appeals), Chandigarh on 14-5-1991 directing the applicants to file in the office of the CEGAT. By mistake again the appeal was addressed to the Collector of Central Excise (Appeals), C.R. Building, at New Delhi. Superintendent of Central Excise, New Delhi sent the appeal papers to Chandigarh with a copy to the appellants on the ground that appeal papers were mis-sent, for further necessary action on 6-6-1991. Further, papers were returned to the applicants by the Superintendent (Appeals), Chandigarh on 17-6-1991. On 30-7-1991 the applicants sent covering letter No. PBI/SLS/913 by registered post to the Assistant Registrar, CEGAT, New Delhi enclosing 17 pages of appeal papers as originally filed with the Collector (Appeals), Chandigarh. He said that these appeal papers were received by the registry of CEGAT on 20-8-1991. Since they were defective inasmuch as form number EA-3, DD etc. were not enclosed, the same were returned to the party on 26-8-1991. EA-3 form alongwith the relevant papers were addressed to the Assistant Registrar, CEGAT, by registered post on 25-12-1991. He submitted that the applicants were pursuing wrong remedy upto 17-6-1991 as can be seen from the records and delay was required to be explained by the applicants from 17-6-1991 to 19-8-1991 since the appeal papers were presented on 20-8-1991. He contended that upto 20-8-1991 the applicants were pursuing remedy in a wrong forum but subsequent delay has been caused due to the fact that applicants' unit has been situated in remote corner and it is well known that entire Valley of Kashmir is seriously disturbed by reported militant activities coupled with hartals. He said that pursuing proceedings before the different authorities is a sufficient cause to condone delay referring to the decision of the Tribunal in the case of Collector of Customs, Jaipur v. Instrumentation Ltd., Kota, reported in 1990 (45) E.L.T. 570 (Tri.) and in the case of Span Equipments Ltd., Bangalore v. Collector of Central Excise, Bangalore, reported in 1992 (42) ECR 702. He submitted that letter filed before the Tribunal on 20-8-1991 should be taken as the date of the filing of the appeal referring to the decision in the case of Orient Litho Press v. Collector of Customs 1990 (50) E.L.T. 543, wherein appeal was filed in the form of a letter but subsequently form number CA. 3 was filed in the registry on 10th day of May, 1985, and the same was admitted therein. He contended that this is a fit case to be admitted by condoning delay by taking all facts into consideration and the Court should not take too strict and pedantic stand which will cause injustice while considering the application for condonation of delay as it was held in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors., reported in 1987 (28) E.L.T. 185 (SC).
4. Shri M.K. Jain, learned SDR while opposing this application submitted that it is not that the applicants have approached wrong forum at once and pursuing remedy repeatedly before the wrong forum in spite of specific direction given by the concerned authorities is neither a ground nor sufficient cause to condone inordinate delay in filing the appeal. He contended that letter dated Nil received in the office of the Tribunal on 20-8-1991 cannot be taken as an appeal in the eye of law as it was neither in the prescribed form nor supported by institution fee. Further it is not clear whether mere letter was filed or it was filed alongwith the annexures as it is not supported by any evidence. Subsequent delay was also not explained properly with sufficient cause and, accordingly, the application is liable to be rejected. Filing of appeal in a casual and leisurely way and plea of wrong advice cannot be considered as sufficient cause since every day's delay is to be explained, and in support of his contention, he has referred to the following decisions :-
(i) Atco Industries Ltd. v. Collector of Customs, 1993 (64) E.L.T. 129 (Tribunal).
(ii) Collector of Central Excise v. Rallis India Ltd., 1991 (53) E.L.T. 395 (Tribunal).
(iii) Collector of Central Excise, Vadodara v. Banco Aluminium & Gujarat Aluminium, Baroda, 1987 (27) E.L.T. 102 (Tribunal).
5. We have carefully considered the matter. The applicants were required to file appeal before the Tribunal against the order dated 27-2-1991 within three months from the date of the communication of the order. In the instant case, since impugned order was received on 6-3-1991, the appeal papers were to be presented on or before 6-6-1991 but by mistake the applicants have chosen to file the appeal before the wrong forum. On receipt of the appeal papers from the Collector (Appeals), Chandigarh, we are unable to understand what made them to file the very appeal papers before the Collector (Appeals), New Delhi and even subsequent to the return of the papers from Collector (Appeals), Chandigarh, they have not taken proper steps in filing the appeal before the CEGAT in spite of the fact that the applicant being a State Government Unit and having a permanent Representative in Delhi as it was rightly pointed out by the Departmental Representative. Time taken before the wrong forum may be a ground to condone delay if it was under bona fide mistake, but pursuing remedy before the wrong forum repeatedly cannot be considered to be a sufficient cause to condone delay as it was rightly argued by the Departmental Representative. Assuming that the applicants were pursuing remedy before different wrong forums under bona fide mistake but why further delay has been caused on receipt of the papers from the office of the Collector (Appeals), Chandigarh after 17-6-1991 is not clearly explained and cause is not supported by evidence to constitute sufficient cause to condone delay. We are of the view that mere letter filed by the applicants before the Assistant Registrar, CEGAT, is not an appeal in the eye of law and decision referred to by the applicants in the case of Orient Letho Press (Supra) is not applicable to the facts of this case since in that case the applicants have taken draft earlier to file appeal papers before the Tribunal and defect was rectified. This is not so in this case. Neither EA-3 form was filed in time nor they have taken any steps to show that they have taken draft to prove their bona fide. We are not convinced with the argument advanced by the applicants in this case that the applicants were prevented by sufficient cause because of the fact that they were disturbed due to continuous militant activities in the Valley of Kashmir. This disturbance never came in their way in filing the appeal as can be seen from the fact that they were pursuing remedy either before the wrong forum or in the casual manner without proper advice. It is well settled principle that right of appeal is neither a fundamental right nor a natural right but only a statutory right. Statute provides that Tribunal may admit an appeal after expiry of the period if it is satisfied that there was sufficient cause for not presenting it within the said period. To condone delay not only there should be a cause but it should be sufficient. Delay in the instant case was not at all properly explained after returning the papers from the Collector (Appeals), Chandigarh and even subsequent delay after filing the letter dated 20-8-1991 which is said to be an appeal according to the applicants. All these facts clearly show that matter was processed in a casual manner without displaying alacrity and despatch. The decisions cited by the applicants' counsel are not applicable to the facts of this case in view of the peculiar circumstances. It is not possible to lay down precisely as to what facts or matters would constitute 'sufficient cause', under Section 35B(5) of the Central Excises and Salt Act, 1944. The delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which it would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case, but the expression 'sufficient cause' cannot be construed too liberally to condone inordinate delay in this case. In our view, the applicants were not diligent for the subsequent period on receipt of the appeal papers from the office of the Collector (Appeals), Chandigarh and, accordingly, condonation of delay application filed by the applicants is hereby rejected. Consequently, the appeal is dismissed as barred by time.