- (1.) M/s. Jhabboo Lal Kasera Rolling Mills, Mirzapur, the petitioner, felt aggrieved by an order dated September 12, 1972 , passed by the Deputy Collector, Central Excise, Allahabad, after considering the explanation offered by the petitioner on July 17, 1972 to a notice dated July 1, 1972, confiscating 204 and 120 billets and in lieu thereof an option to redeem the same on payment of Rs. 6,000/ as fine. The finding was that there was breach of Rule 226 of the Central Excise Rules, 1944. A personal penalty of Rs. 750/- was also imposed. This order was sent to the petitioner by registered post acknowledgement due as is clear from the endorsement at the foot of the copy of the order which has been filed as Annexure C to the writ petition. The petitioner filed an appeal against the order under Section 35 of the Central Excises and Salt Act, 1944. The appeal was dated December 14, 1972 but was received in the office of the Appellate Collector on December, 16, 1972. The Appellate Collector held that the appeal was barred by limitation under Section 35 of the Act. He also rejected the prayer made by the petitioner for condonation of delay under Section 5 of the Limitation Act on the ground that the provisions of the Limitation Act, 1963 were inapplicable to proceedings under the Central Excises and Salt Act, 1944 which was a Special Act. The petitioner assailed the decision in revision under Section 36 of the Act. The revision was dismissed. In the revisional order (Annexure F to the petition) it has been mentioned that the argument was that the petitioner could not file the appeal within time as the proprietor was laid up with chronic dysentery. Further, that the plea was not convincing. Then, the present writ petition was filed by the petitioner for redress in this Court.
(2.) Sri A.P. Mathur, appearing for the petitioner, urged that the appellate as well as the revisional authority were in error in taking the view that the appeal was barred by limitation and that in any case, the revisional authority should have disposed of the revision on merits of the case.
(3.) Section 35 of the Act, as it then stood, provided that a person deeming himself aggrieved by any decision passed by a Central Excise Officer, may, within three months from the date of such decision, appeal therefor to an officer designated by the Central Government. In the order passed by the Deputy Collector, it was mentioned that a person deeming himself aggrieved by the order may appeal against it to the Appellate Collector of Central Excise C/o., The Collector of Central Excise, Central Revenues Building, New Delhi and the appeal must be filed within 3 months from the date of personal service or receipt by post by the party. The copy of the order dated September 12, 1972 was received by the petitioner on September 13, 1972, as per the recital in paragraph 2 of the appellant order wherein it has been mentioned that the petitioner admitted before the Appellate Collector that he had received the order on September 13, 1972. The appeal could, therefore, have been filed, at best, within three months from September 13, 1972. It is not in dispute that an appeal dated December 14, 1972 was filed by the petitioner. It is clear that the appeal was not presented before the Appellate Authority within three months of September 13,1972 nor was it despatched by post either, before expiry of three months from the date of the order or the date on which the petitioner received the order under appeal. The appeal was apparently barred by three days under the rule of limitation. The Appellate Authority was not in error in treating it to be barred by time.;