Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs F.G.P. Limited on 27 October, 1988
Equivalent citations: 1988(19)ECR558(TRI.-DELHI), 1988(38)ELT712(TRI-DEL)
ORDER Harish Chander, Member (J)
1. Collector of Central Excise, Bombay - III had filed an appeal being aggrieved from order-in-appeal No. HN-30/B. III-13/86 (File No. V-2 (15A) 579/86) passed by the Collector of Central Excise (Appeals), Bombay. In Column No. 3 of the memo of appeal the date of communication has been mentioned as 17th Sept., 1987. The appeal was supported with an application for condonation of delay and an affidavit sworn before a Notary Public. The matter had come up for hearing before the Tribunal on 19th July, 88 and the learned S.D.R. had made a request for adjournment on the ground that he wanted to substantiate his grounds for condonation of delay. In the interests of justice an adjournment was granted even though it was opposed by the other party. The matter had come up for hearing today. The learned J.D.R. stated that he has not received any information from the Collector in this regard in spite of the fact that a telex was sent on 19th July, 1988. He again requested for adjournment. Shri Ravinder Narain opposed the request for adjournment and in support of his arguments he referred to a judgment in the case of Union of India v. Visveswaraya Iron & Steel Ltd. reported in 1987(32) ELT 458 where the Court had observed that "But we do not see why any further time should be granted to the petitioners to file a supplemental affidavit. After hearing both the sides we do not find any justification in the grant of adjournment and as such we proceed to decide the same on merits."
2. Shri R.P. Sharma has reiterated the contentions made application for condonation of delay. He has pleaded that the applicant was prevented by sufficient cause in the late filing of the appeal. In support of his arguments he has referred to the case of Collector Land Acquisition v. Mst. Katiji Bibi reported in 1987(28) ELT 185 where the Supreme Court had held that the appellant Is not to explain each and every day's delay. He has pleaded for the condonation of delay.
3. Shri Ravinder Narain has opposed the condonation of delay and has stated that the appeal was filed on 13.1.1988 and the order was communicated on 17.9.1987. Thus there Is a delay of 29 days. In support of his arguments he has cited the judgment of the Hon'ble Supreme Court In the case of Union of India and Ors. v. Tata Yodogawa Limited and Anr. In Special Leave Petition Nos. 3772-73 of 1987. He has also cited another judgment of the Tribunal In the case of Collector of Customs, Bombay v. Caprihans India Limited reported In 1988 (33) ELT 110 (paras 9 & 10). He has stated that judgment cited by the learned S.D.R. In the case of Collector, Land Acquisition v. Mst. Katijl Bibi was duly discussed in this Tribunal's decision and the same was not followed. Shri Ravinder Narain in support of his arguments has also referred to an earlier judgment of the Supreme Court in the case of Ram Lal v. Rewa Coal Field reported in AIR 1962(SC) 361. Shri Ravinder Narain has argued that in view of the judgments cited by him the application for condonation of delay should be rejected as the applicant has not been able to prove that he was prevented by sufficient cause in the late filing of the appeal. In Mst. Katiji Bibi's case the observation of the Supreme Court was that "Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay?" The doctrine must be applied in a rational common sense pragmatic manner". The Hon'ble Supreme Court in that case had condoned the delay after being satisfied that the applicant was prevented by sufficient cause.
4. We have heard both the sides and have gone though the facts and circumstances of the case. The application for condonation of delay filed by the Collector of Central Excise, Bombay is reproduced below:-
"The delay caused in filing the appeal is actually for 29 days i.e. from 16.12.1987 to 13.1.1988 and including the date of filing the appeal, i.e. 13.1 1988. The delay is attributed to administrative reasons. It is not willful or malafide". A simple perusal of the application will show that the delay is attributed to the administrative reasons. The applicant has not given the details as to the administrative reasons and no day to day chart has been filed. We do not find any justification in according the applicant's request for condonation of delay. The judgment in the case of Mst. Kitiji Bibi reported in 1987(28) ELT 185 does not help the applicant. The applicant in the present case before us has not filed any details and there appears to be negligence on the part of the applicant in filing the appeal and the applicant has taken it in a very casual manner. Even the applicant has not filed day to day chart for the period of delay. The latest judgment of the Supreme Court in the case of Union of India v. Tata Yodogawa Limited and Another dated 21 st Sept., 1988 has held that the inter-departmental correspondence and processing of the matter to enable the department to file the petition was not a sufficient cause. Operative portion of the judgment is reproduced below: -
"From 26.12.1986 to 10.2.1987 and from 6.3.1987 to 24.3.1987 there is no cogent and possible explanation. It may be mentioned that the special leave petition was actually filed on 23.3.1987. There is no whisper to explain what "legal problems in filing the special leave petition arose." It appears to us that no attempt has been made to explain this delay. In that view of the matter we gave further opportunity to the petitioners to file additional affidavit explaining the cause, if any, for this delay. It is further stated in the rejoinder affidavit to the counter affidavit on be-half of the Respondants that "such delay is always beyond the control of especially in Government matters as the file has to be routed through several Sections of the Department". We are aware of the fact that the Government being impersonal takes longer time than the private bodies or the individuals. Even giving that latitude, there must be some way or attempt to explain the cause for such delay. As stated from the facts narrated herein before there is no sufficient cause to explain the delay. Hence, the application for condonation of delay is dismissed."
This is a three Bench decision. The earlier decision of the Supreme Court is a two Judges Bench decision and even in the case of Mst. Katiji Bibi the Supreme Court did not overrule its earlier view in the case of Ram Lal v. Rewa Coal Fields reported in 1962 SC 361. Taking into consideration the judgments of the Supreme Court and the facts and circumstances of the case we hold that the applicant was not prevented by sufficient cause in the late filing of the appeal. The application for condonation of delay is rejected.
5. Since we have rejected the applicant's request for condonation of delay the appeal is also dismissed being hit by limitation and we are not going into the merits of the same.