Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Hindustan Lever Limited on 13 February, 1986
Equivalent citations: 1986(6)ECR564(TRI.-DELHI), 1986(24)ELT639(TRI-DEL)
ORDER M. Gouri Shankar Murthy, Member (J)
1. The facts, in so far material, in this application for condonation of delay in filing the appeal, preferred by the Collector of Central Excise, Meerut, are as follows, on the basis of an affidavit sworn by the applicant and other relevant papers on record :-
(a) The Order-in-Appeal dated 4-7-1984, now the subject-matter of an appeal before us, was received in the applicants' office on 19-11-1984;
(b) the applicant had authorised the Assistant Collector Central Excise Division III, Ghaziabad, to file the instant appeal on 16-2-1985;
(c) 17-2-1985 was a Sunday;
(d) the authorisation was, for a fact, received by the Assistant Collector, Ghaziabad, on 19-2-1985 (The Receipt Register from the Asstt. Collector's office produced at our instance). That was the last day for filing the appeal itself;
(e) The appeal was actually filed on 28-3-1985 in the office of the Tribunal;
(f) There was, therefore, a delay of nearly 36 days in filing the appeal after the expiry of the limitation on 19-2-1985;
(g) Between 8-2-1985 and 5-3-1985 the entire staff of the Central Excise Division III, Ghaziabad, including the Assistant Collector, were deployed on State Assembly Election duties and thereafter the staff remained fully occupied with the pre-budget work, as the Union Finance Budget was due to be presented on 16-3-1985 (The Collector's affidavit) and even thereafter owing to post-budget assignments (Assistant Collector's note dated 23-7-1985).
2. However, while the applicant states in an affidavit that although the authorisation for filing the appeal was issued by him on 16-2-1985, the staff of the Assistant Collector's of Central Excise at Ghaziabad was busy right up to 16-3-1985 either on election duty or pre-budget activity, the Assistant Collector, Ghaziabad, puts in a note saying that even after 16-3-1985 the staff was busy with post-budget work. Significantly the statement of the Assistant Collector is not made on oath in the course of an affidavit.
3. It has, necessarily, to be inferred, in the aforesaid facts and circumstances, that in any view of the matter, there is no explanation or an account even attempted for the period between 16-3-1985 and 28-3-1985 when the appeal was actually filed. This is apart from the incredible nature of the explanation furnished for the failure to file the appeal atleast after 19-2-1985. The appeal could have been posted to reach the Tribunal. Election duty between 8-2-1985 and 5-3-1985 and thereafter pre-budget work till 16-3-1985 could not be such that there was no time to post the appeal even.
4. Relying on the decision of the Hon'ble Supreme Court in 1983 ECR 1556 [State of Uttar Pradesh v. Bahadur Singh and Ors.] and the Tribunal's decision in 1985 (21) E.L.T. 529 [Collector of Customs, Bombay v. Godrej Soap Ltd.], it was contended for the applicant that public interest must be considered in condoning the delay. A departmental authority may delay for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which may be explainable.
5(a). In the decision of the Hon'ble Supreme Court in 1983 ECR 1556,-
(i) a Writ Petition filed by the State of Uttar Pradesh against the decision of a quasi-judicial authority under the U.P. Agricultural Land Ceiling Law, was dismissed on the ground that it was filed after a long delay exceeding the "usual period of limitation of 90 days," by 42 days;
(ii) obviously, there was no period of limitation prescribed for filing a Writ Petition except that the Court may not examine stale causes "as the Court helps the vigilant and not the indolent, as a rule of judicial circumspection";
(iii) reiterating the aforesaid principle, the Hon'ble Supreme Court observed that on the facts as well, the explanation for such delay, if any, was convincing and acceptable;
(iv) accordingly, allowing the S-L.P. Hon'ble Court observed-
"Not that the departmental authorities charged with a duty to implement the law should not be vigilant, but one aspect cannot be overlooked that a departmental authority may delay the moving of the High Court for oblique motives and the public interest may suffer such cause is thrown out merely on the ground of some delay which is also explainable (underlining ours). These are relevant considerations which must enter a judicial verdict before rejecting such cause on the ground of delay."
(b) Following the aforesaid decision, it was held in 1985 (21) E.L.T. 529 that, notwithstanding that limitation applied equally to the Government, still, "if the delay is explainable, (underlining ours) it should be condoned keeping in view the public interest". On the facts of that case, it was held that the delay was explained seeing that it was due to the necessity of seeking a second opinion from the Chief Chemist in view of the Tribunal's earlier decision on the issues arising in the instant appeal;
(c) the aforesaid decisions are clearly on their own facts. While the Hon'ble Supreme Court had deprecated the dismissal of a Writ Petition on the ground of bar of limitation when, in fact, no limitation at all was prescribed, and the delay, if any, was convincingly accounted for in the decision of the Tribunal the "delay is explainable". The aforesaid decisions have in the circumstances, no applicability to the facts of this case when even on the face of it, the applicant has offered no explanation for the period between 16-3-1985 and 28-3-1985.
6. On the contrary, it is axiomatic in law that-
(a) in terms of S. 35B(5) of the Central Excises and Salt Act, 1944, the delay in filing the appeal after the efflux of the period of limitation prescribed in S. 35B(3) can be condoned only if the Tribunal is satisfied that there was sufficient cause for not presenting it within the period;
(b) there is no question of construing sufficient cause liberally just because the party seeking condonation happens to be the Government 1964 (3) S.C.R. 467-Union of India v. Ram Charan and Ors.; AIR 1972 S.C. 749-The State of West Bengal v. Howrah Municipality and Ors.]',
(c) "Sufficient cause" for not preferring an appeal within the prescribed time has always been uderstood to mean that the explanation has to cover the whole period of delay [(I960) 1 S.C.R. 875-889-Sitaram Ram Charan=AIR 1960 S.C. 260 at 265-66] and therefore each day's delay after the efflux of the period of limitation has, necessarily, to be explained;
(d) the words "sufficient cause" have to be so construed as to advance the cause of substantial justice when no negligence or inaction or want of bona fides is imputable to a party i.e. the delay in filing the appeal should not have been for reasons which indicate the party's negligence in failing to take the necessary steps he would have or should have taken (AIR 1972 S.C. 749-The State of West Bengal v. Howrah Municipality).
7. In the Tribunal as well, the aforesaid principles governing condonation of delay had been reiterated and followed in-
(a) 1985 (2) E.L.T. 362 [Collector of Customs, Bombay v. Gujarat State Fertilizers Co. Ltd.]',
(b) 1985 (21) E.L.T. 709 [Collector of Central Excise, Calcutta v. East Coast Paper Products-by the identical Bench as in 1985 (21) E.L.T. 529 relied upon for the applicant];
(c) 1985 (22) E.L.T. 590 [Collector of Customs, Calcutta v. Calcutta Hardware Stores].
In 1985 (6) ETR 3 [Collector of Customs and Central Excise, Shillong v. Raidang Tea and Samdang Tea Estates and Ors.] as well, the aforesaid principles were all adverted to. That was, however, a case where on the facts, it was held that the delay, if any, in filing supplementary appeals could be condoned when, for a fact, one consolidated appeal against a plurality of adjudication orders had been filed within limitation.
7. Applying the aforesaid principles, we have, in the facts of the case, no hesitation in concluding that, it is not a case where the applicant had not been guilty of negligence or inaction.
8. The application is accordingly dismissed.
9. Since the appeal was, admittedly, filed after the expiry of the period of limitation and the delay is not condoned, it is also dismissed.