Customs, Excise and Gold Tribunal - Delhi
Capberry Packings (P) Ltd. vs Collector Of C. Excise on 11 April, 1994
Equivalent citations: 1994ECR475(TRI.-DELHI), 1994(72)ELT33(TRI-DEL)
ORDER G.P. Agarwal, Member (J)
1. Along with the present appeal, the appellants have also filed the captioned application for Condonation of Delay in preferring the present appeal.
2. When the case was called on for hearing, none appeared on behalf of the appellants. However, they requested that the application be decided in their absence on merits. One Shri Yogesh Kumar, claiming himself to be the clerk of Shri Vinay Garg, Advocate, also appeared only to draw the attention of the Bench regarding the said request. Accordingly, we perused the application and the submissions contained in their further written submissions, dated 10-9-1993 and heard Shri Somesh Arora, learned JDR.
3. In their application the appellants have stated that the impugned order in the present appeal was communicated to them on 25-3-1992 and as per Sub-section 35B(3) of the Central Excise Act, 1944 it ought to have been filed on or before 25-6-1992 but it was received in the Registry on 25th August, 1992. They have stated that in the present case the impugned Order-in-Original was passed by the Additional Collector of Central Excise, Allahabad, on 31-12-1991 (appears to have been issued on 22-1-1992) and after its communication to the appellants on 25-3-1992 they filed their appeal before the Collector (Appeals) Central Excise, Allahabad, but it was returned to them under covering letter dated 30-7-1992 by the Collector (Appeals) stating as follows :
"2. The definition of 'Collector' as contained in Rule (2)(ii) has been amended vide Notification No. 11/92-C.E. (NT), dated 14-5-1992 meaning thereby that an Additional Collector of Central Excise is not a 'Collector' for purposes of appeal. The appeals against the impugned order passed before enactment of Finance Act, 1992 would, however, continue to lie to the CEGAT in terms of Central Board of Excise & Customs, New Delhi's letter F. No. 208/26/92-C.E. 6, dated 14-5-1992 (Circular No. 3/92-C.E.).
The instant appeal having not been filed to proper authority cannot be entertained for consideration and hence has been consigned to records. Duplicate copy of the appeal is, however, returned to you for records.
You are, accordingly, advised to submit the appeal in proper form to the CEGAT, New Delhi."
The same was received by the appellants on 7-8-1992 and since the Director of the Appellants' Company was out of station he could contact the Counsel at Lucknow on 14-8-1992 only for filing the present appeal and, thereafter, the appeal was finally prepared on 22-8-1992 at Lucknow and filed on 25-8-1992. In their supplementary submissions they have explained the delay occurred after 14-8-1992 stating that 15th & 16th August were closed holidays being Saturday & Sunday and on 18th & 19th August, 1992 the memo of appeal which was filed before the Collector (Appeals) was modified and their counsel at Lucknow finalised the same on 22nd August, 1992, as he was away during the intervening period on account of the professional work. Opposing the prayer for Condonation of Delay, the learned JDR, Shri Somesh Arora, submitted that the said grounds cannot be termed as sufficient cause for Condonation of Delay and cited the following cases :
(i) Collector of Central Excise, New Delhi v. National Chemicals Indus. Ltd., 1986 (26) E.L.T. 151, wherein it was held that delay is condonable only if the court is satisfied that the appellant was prevented by sufficient cause in not presenting the appeal within the prescribed period.
(ii) Geeta Clearing Agency, Bombay v. Collector of Customs, Bombay, 1986 (26) E.L.T. 841, wherein it was held that the appeal is a statutory right and has to be filed before the authorities which is constituted as a appellate authority under the statute. There is an obligation on the part of the appellants to ascertain the appellate forum before he files an appeal. However, on the facts it was held that only the period of pendency of appeal with wrong authority is excludible while computing the period of limitation prescribed for filing the appeal.
(iii) Collector of Customs, Bombay v. Parkar Corporation, 1987 (29) E.L.T. 300, wherein it was held that delay due to inter-departmental correspondence or consultation or office procedure could not constitute "sufficient cause" and further that intervening holidays could not be considered a ground for condonation of delay, since the official work could be done even on holidays also.
3.1 He also submitted that no affidavit in support of the present application has been filed.
4. Considered. It is the case of the appellants that the impugned order in the instant case was communicated to them on 25-3-1992 and a period of three months, that is to say, upto 25-6-1992 was available to them for filing the appeal against the said order of the Additional Collector under Sub-section (2) of Section 35B of the Central Excises & Salt Act, 1944. But meanwhile the Central Government amended Rule 2 of the Central Excise Rules, 1944 by Central Excises (Fourth) Amendment Rules, 1992. By this amendment in Rule 2 in Sub-rule (2)(ii) for the words "and includes an Additional Collector" occurring after Clause (B) the words, letter and figures "and includes an Additional Collector except for the purposes of Chapter VI-A of the Central Excises and Salt Act, 1944" were substituted. However, the appeal was filed before the Collector (Appeals) on 23-6-1992, that is to say, within the prescribed period of three months. But it was returned by him under his covering letter dated 30-7-1992 which was received by the appellants on 7-8-1992. On receipt, the appeal was prepared in consultation with their advocate at Lucknow and filed on 25-8-1992. Therefore, the delay occurred in preferring the present appeal be condoned as the appellants were acting with bonafide. On the other hand, the contention of the learned JDR is that, the facts narrated by the appellants do not constitute sufficient cause in the light of the ratio of the case law cited by him. To appreciate the rival contentions of both the parties, it may be stated that in the instant case impugned order was passed on 31st December, 1991 and it communicated to the appellants on 25-3-1992 and as per Section 35(1) of the Central Excises and Salt Act, 1944 which falls under Chapter VI-A the appeal was required to be filed before this Tribunal and, therefore, it was rightly pointed out in the preamble to the Order-in-Original passed by the Additional Collector that any person aggrieved by this decision may appeal to this Tribunal within the period of three months in EA-3 Form. But the matter does not rest here, since admittedly, during the period of three months available to the appellants from the date of the communication of the impugned order, that is to say, 25-3-1992. Rule 2(ii) of the Central Excise Rules, 1944 was amended by the Central Excises (Fourth) Amendment Rules, 1992 (which came into effect from 14-5-1992) providing that the term "Collector" means "and includes an Additional Collector except for the purposes of Chapter VI-A of the Central Excises and Salt Act, 1944". Prior to this amendment, the words "except for the purposes of Chapter VI-A of the Central Excises and Salt Act, 1944" were not there in original. Rule 2(ii) with the result that after this amendment all orders passed by the Additional Collector became appealable before the Collector (Appeals) and not before this Tribunal as it was originally provided for. The necessity for amending the said Rule by the Central Excises (Fourth) Amendment Rules, 1992 is apparent. Since by the Finance Bill, 1992 (which recieved the assent of the President on 14-5-1992) the definition of Collector of Customs given in Clause (8) of Section 2 of the Customs Act, 1962 which define "Collector includes an Additional Collector of Customs" was amended by substituting the words "(8) Collector of Customs, except for the purposes of Chapter XV includes an Additional Collector of Customs" [Chapter XV makes provisions for filing of the appeal before the Collector (Appeals)]. Therefore, a corresponding amendment was also made in the Central Excise Rules in the definition of "Collector". It is significant to note that in the said Finance Bill, 1992 a provision for the transitionary period, that is to say, between the date of the presentation of the Finance Bill, 1992 till the date when it received the assent of the President was made to remove the doubts in the form of Section 115 of the Finance Bill which reads thus :
"115. Removal of doubts - For the removal of doubts, it is hereby declared that notwithstanding the amendment made in clause (8) of Section 2 of the Customs Act, 1962 (52 of 1962), by this Act, the provisions of Chapter XV shall continue to apply in so far as they relate to any decision or order passed by an Additional Collector of Customs immediately before the date on which the Finance Bill, 1992 receives the assent of the President."
No such provision was made in the Central Excises (Fourth) Amendment Rules, 1992. Therefore, the controversy may arise as to whether the changes made in the definition of "Collector" in Rule 2(ii) of the Central Excise Rules, 1944 by the Central Excises (Fourth) Amendment Rules, 1992 would be retrospective or prospective. One line of argument may be that since these are procedural matters, such amendment should take effect retrospectively whereas the other line of approach may be that it may be prospective. In fact, this controversy was raised before this Tribunal in the case of Om Prakash Arun Kumar v. Collector of Customs, 1993 (64) E.L.T. 492. In that case the impugned order was passed by the Additional Collector on 14-5-1992, that is to say, the date on which the Finance Bill, 1992 received the assent of the President, but it was communicated to the importer therein after 14-5-1992 and, therefore, the question which was agitated was, as to whether in view of the amendment made in the definition of the Collector of Customs in Section 2(8) of the Customs Act, the appeal would lie before this Tribunal because the interim order passed by the Additional Collector therein was prior to 14-5-1992 or the appeal should be filed before the Collector (Appeals) because it was communicated to the importer after 14-5-1992. This Tribunal after hearing both sides concluded that since the impugned order was passed by the Additional Collector prior to 14-5-1992 the appeal is maintainable before this Tribunal. The purpose of the said discussion is to show that the question as to whether the appeal would lie before this Tribunal or before the Collector (Appeals) against the order of the Additional Collector passed before 14-5-1992 when the Finance Bill, 1992 became the Act on receipt of the assent of the President under the Customs Act or under Section 35 of the Central Excises and Salt Act, 1944 on account of the amendment in the definition of "Collector" made by the Central Excises (Fourth) Amendment Rules, 1992 was not free from doubt at least at the time of the filing of the appeal by the present appellants against the impugned order before the Collector (Appeals) on 23-6-1992. Under these circumstances, we are of the view that in the present case there was sufficient cause for not preferring the appeal in time before this Tribunal keeping in view the fact that immediately after the return of the appeal by the Collector (Appeals), the appellants filed the present appeal before this Tribunal after getting it drafted and finalised by their counsel. Accordingly, we condone the delay.
5. Before we part, it may be stated for the record that, whether the Collector (Appeals) was legally right in returning the appeal filed by the present appellants before him or not, was not debated before us and the case of Om Prakash Arun Kumar v. Collector of Customs, supra, was decided keeping in view Section 115 of the Finance Bill, 1992 which became the Act on 14-5-1992 whereas while amending the definition of "Collector" in Rule 2(2) of the Central Excises Rules, no such provision was made in the Central Excise (Fourth) Amendment Rules, 1992.