Decided on January 08,1991



K. Sankararaman, Member (T) - (1.) THE Miscellaneous Application by the Collector of Central Excise, Calcutta-II, seeks condonation of delay of 19 days in the filing of appeal against the order-in-appeal dated 11-1-1990 passed by the Collector of Central Excise (Appeals), Calcutta. THE impugned order had been received in the Collectorate on 1-3-1990 and the appeal should have been filed within 3 months viz. on or before 1-6-1990. THE appeal was actually filed on 20-6-1990 which meant a delay of 19 days beyond the normal period of limitation of three months. THE respondents have filed a cross-objection attacking the very basis or maintainability of the appeal. Accordingly, it is necessary to deal with the same before considering the application for condoning the delay in filing the appeal. In the Cross-Objection it has been contended that an appeal by the Department against the order of the Collector (Appeals) can be submitted by the authorised officer only when the Collector has directed the authorised officer to appeal on his behalf to the Tribunal against such order. Further, according to Rule 9(2) of the CEGAT (Procedure) Rules, 1982 the memorandum of appeal should be accompanied by an attested copy of the order containing the direction of the Collector for filing such appeal. No copy of such order is available with the copy of appeal sent to the respondents. THEy have relied upon the order passed by C.E.G. A.T. Special Bench-D in Collector of Central Excise v. K. Manibhai & Co. reported in 1989 (43) E.L.T. 671, where the appeal was dismissed as not maintainable because it was accompanied only by a general authorisation and not for the particular case. It was held to be not a proper authorisation. Supreme Court had rejected the appeal against the Tribunal's Order [reported in 1990 (45) E.L.T. A-137]. Reliance has also been placed on the orders of C.E.G.A.T. in Collector of Central Excise, Calcutta v. Koilite Inds. Pvt. Ltd. reported in 1987 (31) E.L.T. 289 and Collector of Central Excise v. Kusum Products Ltd. reported in 1989 (42) E.L.T. 6.
(2.) The request for condonation of delay has been resisted in the cross-objection. The application for condonation of the delay beyond the normal period of limitation of three months due to office procedures etc. has been opposed. Placing reliance against the decision of the Tribunal in Collector of Central Excise v. Kusum Products (supra) and Collector of Customs v. Indian Petro-Chemical Corporation Ltd. reported in 1990 (47) E.L.T. 428, where the nonavailability of original records and reconstructing this file on the basis of copies of documents called from the respondents was not considered as sufficient cause to condone the delay. It has, therefore, been urged that on these preliminary points the appeal may be dismissed as not maintainable and also on grounds of time-bar. When the matter was posted for hearing, Shri M.N. Biswas learned S.D.R. appeared for the applicant Collector. He adopted the reasoning given in the condonation application. He also referred to the Chart showing the details of processing at different stages. He referred to the cases cited in the application where delays had been condoned. He pleaded that the delay may be condoned and the appeal heard on merits. He relied upon the judgment of the Supreme Court in Collector, Land Acquisition, Anantnag. v. Mst. Katiji 1987 (28) E.L.T. 185 and the Delhi High Court in Indian Telephone Industries v. C.E.G.AT. 1987 (32) E.L.T. 651 (Del).
(3.) THE plea for condonation of delay was strongly opposed by the learned Counsel for the respondents, Shri S.R. Mukherjee. He referred to the contentions raised in the Cross-Objection stating that the factors present in the two cases relied upon by the Department were absent in the present case and far from sufficient cause there was no cause for condonation of delay. He, in turn, relied upon the decision of the Tribunal Special Bench : A in Collector of Central Excise v. Kusum Products [reported in 1989 (42) E.L.T. 6] where the delay on account of movement of people, machine, documents, holding etc. was not considered to be sufficient cause for condoning the delay. THE merits of the case are fully in their favour, in view of the South Regional Bench decision in Collector of Central Excise, Hyderabad v. Chitra Polypack Industries reported in 1989 (22) ECR 101 which has been correctly relied upon by the Collector (Appeals) in his order. In the case of I.T.I. v. C.E.G.A.T. 1987 (32) E.L.T. 651, the Delhi High Court took note of the fact that the appellants had taken up the matter with their Administrative Ministry well in time to obtain necessary sanction for the appeal and it was the approval by the latter which mainly took time. Unlike this in the present case it was for the Collector himself to take the decision for filing the appeal. THE routine office procedures and discussions have taken time and this is not sufficient cause to justify the delay. He submitted that their claim for refund is legitimately due to them following the favourable order of the Collector (Appeals) and it should not be withheld because of the appeal. THE appeal, apart from being not sustainable on merits, is liable to be dismissed on the preliminary grounds of lack of proper authorisation and of time-bar.;

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