Customs, Excise and Gold Tribunal - Delhi
Collector Of Central Excise vs Banco Aluminium And Gujarat Aluminium on 18 August, 1986
Equivalent citations: 1987(11)ECR280(TRI.-DELHI), 1987(27)ELT102(TRI-DEL)
ORDER M. Gouri Shankar Murthy, Member (J)
1. These are four Applications for condonation of delay in as many appeals filed before us against one consolidated order of the Collector of Central Excise (Appeals) by which he disposed of four appeals before him.
2. Originally, one single appeal in E/1044/86-A was filed along with an application for condonation of delay in filing it On the Registry taking exception to one consolidated appeal, three Supplementary Appeals have been filed on 12th May, 1986 along with the three other applications for condonation of delay.
3. The dates relevant for a consideration of the Application for condonation of delay in the original appeal itself (Appeal No. E/1044/86- A) as furnished in the Application are as follows:
(a) 14-10-85 - The order of the Collector (Appeals) was attested and put in a course of transmission to the appellant amongst others;
(b) 18-10-85 - The aforesaid order was received in the office of the Applicant.
It is on 31-3-1986 that the instant appeal was received in the Registry of the Tribunal. Thus, it would appear that there was a delay of 70 days in the filing of the instant appeal excluding the day of receipt of the order of the Collector (Appeals) and the date of receipt of the appeal itself in the Registry.
4. The explanation for the delay as given in the Application was as follows :
(a) 25-10-85 - Letter sent to Division II, Baroda for case records and further comments;
(b) 29-11-85- Savingram issued to obtain case records; 10-12-85
(c) 2-12-85- Examined on 20-12-85;
(d) 26-3-86 - Authorisation by Collector;
(e) 31-3-86 - Appeal filed.
It was pleaded that the delay was neither wilful nor wanton and accordingly it may be condoned in the interest of justice.
5. It would be observed from the foregoing chronology that -
(a) it is not clear as to what exactly happened on 2-12-85. If it was that the papers were received on that day, there was no need to have issued a Savingram on 10-12-85, as would appear from 4(b) supra;
(b) in any case, even on the day the papers were examined on 20th December, 1985, there were 29 days still left for filing the appeal. The Collector however could not give his authorisation till 26-3-86, i.e. nearly 67 days after the last date for filing the appeal had expired. There is no explanation forthcoming for any of these 67 days after 18-1-86 when limitation for filing the appeal had expired.
The applicant's approach to the question of filing an appeal was apparently casual and rather leisurely.
6. For the Applicant it was urged that public interest has to be taken into consideration in condoning the delay since it may be that a departmental authority may delay filing the appeal for oblique motives and the public interest should not be allowed to suffer on that account, as it would, if the appeal is thrown out merely on the ground of some delay which is also explainable. [Reliance on 1983 ECR 1556 (SC) State of Uttar Pradesh v. Bahadur Singh and Ors.]. Our attention was also invited to 1985 (21) ELT 529, wherein the Tribunal had, following the ratio of the aforesaid decision of the Hon'ble Supreme Court held inter alia that although the law of limitation applies equally for or against a private individual as also the Government and no special indulgence can be shown to the Government, still one has to take a practical view of the working of the Government without being unduly indulgent of its slow-moving processes of its wheels. Unlike a private litigant, the Government had to take into consideration the public interest involved and so a long time may be required for enquiry and consideration before taking a final decision in the matter and finally if the delay is explainable, then it should be condoned keeping in view the public interest.
7. For the Respondent, Shri Lodha invited our attention to the decisions reported in -
(a) 1985 (20) ELT 362 (June) [Collector of Customs v. Gujarat Fertilizers Co. Ltd.];
(b) 1985 (21) ELT 518 (August) [Angus Co. v. Collector of Customs];
(c) 1985 (21) ELT 709 (Sept.) [Collector of Central Excise v. East Coast Paper Products Ltd.];
(d) 1985 (21) ELT 750 (Sept.) [Foto India v. Collector of Customs Madras];
(e) 1986 (23) ELT 177 (January) [Collector of Central Excise v. Black Diamond Beavarage Ltd.] and submitted that in the instant case, unlike in 1985 (21) ELT 529 relied upon for the Applicant, the reason for delay had not been satisfactorily explained.
8. On perusal of the papers and the submissions made it would appear to us that -
(a) in terms of S.35-B(3) of the Central Excises and Salt Act, 1944 (hereinafter, the Act), a period of limitation of three months from the date when the order sought to be appealed against was communicated to the Collector was prescribed and the Tribunal was competent under Sub-section (5) of the said Section to admit the Appeal after the expiry of the aforesaid period, if satisfied that "there was sufficient cause for not presenting it within that period";
(b) substantially identical words occur in S.5 of the Limitation Acts of 1908 and 1963 and the expression "sufficient cause" had come up for interpretation in a host of cases;
(c) suffice it to note, however, that -
(i) the right to plead the bar of limitation is a valuable right and once it had accrued, it cannot be lightly divested by condonation of the delay beyond the expiry of the period prescribed, unless, in terms of the statute itself, such condonation is possible. Condonation of the delay is restricted in terms of S. 5 of the Limitation Act as well as S. 35B(5) of the Act, to sufficient cause for failure to file the appeal within the time.prescribed;
(ii) "in dealing with the question of condoning delay under S. 5 of the Limitation Act, the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time and this has always been understood to mean that the explanation has to cover the whole period of delay" [AIR 1960 S.C. 260 : (1960) 1 SCR 875 -Sitharam Ramacharan v. M.N. Nagrashana];
(iii) "in all cases falling under S. 5, what the party has to show is, why he did not file an appeal on the last day of limitation prescribed. That may, inevitably, mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day." [AIR 1962 SC 361 : (1962) 2 SCR 762 - Ramlal v. Rewa Coalfields Ltd.];
(iv) "Even after sufficient cause has been shown, a party is not entitled to the condonation of delay as a matter of right. The proof of 'sufficient cause is a condition precedent for the exercise of the discretionary exercise of the jurisdiction vested in the Court under S. 5. If sufficient cause is shown, then the Court has to enquire whether in its discretion it should condone the delay". LAIR 1962 S.C. 361 - adverted to supra];
(v) "It is not possible to lay down precisely as to what facts or matters would constitute 'sufficient causel under Section 5 of the Limitation Act. But those words should be liberally construed so as to advance substantial justice when no negligence or any inaction or want of bonafides is imputable to a party, i.e. the delay in filing an appeal should not have been for reasons which indicate the party's negligence in not taking necessary steps which he would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case" [AIR 1978 S.C. 537 (542) Mrs. Sandhy Rani Sarkar v. Smt. Sudha Rani Debi];
(vi) "it is true that, the expression 'sufficient cause' cannot be construed too liberally, merely because the party is the Government. Whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by Courts to a private party when he claims protection of Section 5 of the Limitation Act, should also be available to the State. The words 'sufficient cause' should receive a liberal construction so as to advance substantial justice, when no negligence or inaction or want of bona fide is imputable to a party" [(1972) 1 S.C.C. 366 - State of West Bengal v. Administrator Howrah Municipality].
Some of the aforesaid decisions had already been adverted to in our order in 1985 (21) ELT 863 [Collector of Customs and Central Excise, Shillong v. Raidang Tea and Samdang Tea Estates and Ors.];
(d) accordingly, each day's delay has to be explained as a condition precedent for the exercise of judicial discretion in favour of condonation and such explanation offered should not reveal that the delay had occurred on account of negligence, inaction or want of bonafides. Nor is there any case for special indulgence just because the party applying for condonation happens to be Government;
(e) the decision of the Hon'ble Supreme Court in 1983 ECR 1556 (SC) related, if one may say so, to an unusual dismissal of a Writ Petition on the ground that it was barred, having been filed beyond the "usual period of limitation" of 90 days, notwithstanding that no period of limitation at all was prescribed. It was in that context that the Hon'ble Court observed that
(i) the only known principle - a rule of judicial circumspection - is that the Court may not examine stale causes as the Court helps the vigilant and not the indolent;
(ii) the explanation for the delay was convincing and acceptable;
(iii) a decision in that case had to be taken whether the case was one required to be taken to a higher Court;
(iv) even though, the authorities charged with a duty to implement the law should be vigilant, it cannot be overlooked, that a departmental- authority may cause delay for oblique motives and in consequence public interest may suffer "if such cause is thrown out merely on the ground of some delay which is also explainable;
(f) (i) the aforesaid observations were obviously not made with reference to any question relatable to condonation of delay arising under S. 5 of the Limitation Act. In fact, no question of condonation had arisen when no period of Limitation had been prescribed. They cannot be, therefore, torn out of context and sought to be made applicable to a case where condonation was required and applied for and disregarding the principles applicable to such condonation as laid down by the Hon'ble Supreme Court itself in all the decisions cited in para 8(c) supra;
(ii) indeed, one cannot ignore the reference to "such cause" being thrown out. Such case in the facts and circumstances of that case, were the dismissal of a Writ Petition for which no period of limitation was prescribed and in the filing thereof there was unusual delay which could be explained as being due to oblique motives;
(iii) even if one were to assume, without conceding, that the ratio of the aforesaid decision was applicable to a case where there was a period of limitation prescribed and there was delay beyond that period, one cannot overlook that such delay should be explainable and it may be due to oblique motives of the persons charged with the duty of implementation of the law. The ratio cannot, certainly, be applied where the delay is unexplained or where no allegations have been made of oblique motives that delayed the initiation of appropriate proceedings;
(g) in 1985 (21) ELT 529, the delay was explainable and, in fact, satisfactorily explained, so that even without resorting to the aforesaid decision of the Supreme Court in 1983 ECR 1556, the delay could be condoned in exercise of the power vested in the Tribunal in terms of Section 35B(3) of the Act, (analogous to S. 5 o the Limitation Act) for "sufficient cause".
9. In the premises, seeing that the applicant had failed to show any cause whatsoever for the delay, we dismiss the Applications for condonation. In consequence, the Appeals are also dismissed.