R. Jayaraman, Member (T) -
(1.) THERE is a delay of 25 days in filing the appeal, for which a condonation application has been moved. Shri Bharat, the Id. advocate pleaded that the impugned order was received by the appellants on 21.11.1986 and the appeal ought to have been filed on or before 21.2.1987. But the appeal was filed on 18.3.1987. The delay is mainly on account of the fact that their General Manager, Shri Nadkarni, looking after excise matters, died on 13.11.1986 and the factory was taken over by the Receiver and hence was closed since 1982 onwards. Hence normal working was disrupted. Shri Mondal, however stated that even, when the order was received, the factory was closed and it is reported to be closed till date. Hence, this is not a satisfactory explanation. After hearing both the sides, we observe that during the material period, the General Manager of the firm died and this could have caused disruption in the normal working even in the administrative office and hence, we take a liberal view to condone the delay. Accordingly we condoned the delay and proceeded to hear the appeal.
(2.) THIS is an appeal directed against the order of the Collector (Appeals) No. HN -634/B -III -181/86 dated 13.11.1986 rejecting the appellants' appeal for non fulfilment of Section 35F of the Central Excises Act. They were given an opportunity of hearing before the appeal was rejected by the Collector (Appeals). The present appeal is against the aforesaid order of the Collector (Appeals).
(3.) SHRI Bharat, mainly pleaded that the order is not legally sustainable and he canvassed his arguments on points of law only. After he finished his arguments, we specifically asked whether the appellants plead any ground of financial hardship for considering the same so that the appellants could be put to such terms, which are financially viable for their compliance and the matter could be remanded to the Collector (Appeals) for considering their appeal on merits, on condition of compliance of such terms ordered by us. The Id. advocate stated that he could not make any offer and his appeal based on his legal argument may be considered for a decision. In other words, he desired for a ruling that the order passed by the Collector (Appeals) rejecting their appeal for non compliance of the condition of Section 35F is not legally correct and for issue of directions to the Collector (Appeals) for considering his appeal on merits, without invoking Section 35F. 3. We, therefore, propose to deal with his arguments. His arguments are mainly the following:
(i) The Collector (Appeals) ought to have considered their appeal on merits, notwithstanding non -compliance of Section 35F by the appellants; Section 35 confers an unfettered right for filing the appeal. It is not subject to compliance of Section 35F. Compliance of Section 35F is neither a condition precedent nor a requirement for filing the appeal;
(ii) At the time of issue of show cause notice for duty demand, Section 35F was not there. Section 35F came into force on 11.10.1982, whereas show cause notice for duty demand was issued prior to that date. Appeal, being a continuation of the proceedings on conclusion of adjudication, based on the show cause notice, (when Section 35F was not in the statute on the date of show cause notice), that Section cannot be invoked in this case.
On a query by this Bench, the Id. advocate, however, stated that when the order -in -original was passed and when they filed the appeal before the Collector (Appeals) the aforesaid section already come into being. His argument was that since, at the time of initiation of proceedings for demanding duty by issue of show cause notice, Section 35F was not in the statute and hence the condition of Section 35F cannot be invoked in this case.
(iii) They have a vested right of appeal. This cannot be whittled down by the procedural law introduced in Section 35F subsequently.
To support the above arguments, he referred to the following citations: (i) 1983 E.L.T. 1277 (SC) : ECR C 589 SC Hossein Kasam Dada v. State of Madhya Pradesh.
(ii) Ashoka Rubber Products
Shri Mondal, the Id. SDR for the respondent, while opposing the contentions of the advocate, stated the decision of Supreme Court in the cases of Vijaya Prakash D. Metha and Anr. v. Collector of Customs (P), Bombay , while interpreting the provisions of Section 129E of the Customs Act, identically worded as those found in Section 35F, have answered all these objections, now raised by the Id. advocate and that decision has overriding effect over all other decisions. In this case, the question of filing appeal arises only after an order is passed to the detriment of the appellant and not at the stage of issue of show cause notice. Hence, even the so called inherent right to appeal arises only after the order -in -original is passed. It is conceded by the Id. advocate that when the order in original was passed and when they filed the appeal against that order, Section 35F was very much there in the statute. Hence, any such appeal filed is subject to the compliance of mandatory condition prescribed under Section 35F. The Appellate authority, under the proviso to Sac. 35F, may dispense with the condition, if he is of the opinion that it would cause undue hardship and prescribe such condition for safeguarding revenue. The appellants have indicated even before the Bench that they are not pleading any such ground and have not made any offer for safeguarding revenue. Hence, their appeal Is to be rejected in toto.;