1986 (7) TMI 245 - AT - Central Excise

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Misleading preamble in the Collector's order.
3. Responsibility to ascertain the correct appellate forum.
4. Justification for the delay due to the managing partner's absence.
5. Legal precedents and their applicability.
6. Board's responsibility to forward the appeal to the correct forum.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The primary issue was whether the delay of 29 days in filing the appeal could be condoned. The application for condonation of delay was based on the argument that the appeal was initially filed within the period of limitation but to the wrong forum due to misleading directions in the preamble of the Collector's order.

2. Misleading Preamble in the Collector's Order:
The preamble to the Collector's order directed the Appellant to file the appeal before the Central Board of Excise and Customs, which was incorrect. The Appellant followed this direction and filed the appeal within the prescribed period. However, the Board later informed the Appellant that the appeal should have been filed before the Customs, Excise and Gold (Control) Appellate Tribunal. The Tribunal acknowledged that the preamble misled the Appellant, which justified the initial filing error.

3. Responsibility to Ascertain the Correct Appellate Forum:
The Tribunal emphasized that it is the Appellant's responsibility to ascertain the correct appellate forum. Despite the misleading preamble, the Appellant should have verified the correct forum. The Tribunal noted that the appeal is a statutory right and must be filed before the authority constituted under the statute.

4. Justification for the Delay Due to the Managing Partner's Absence:
The Appellant argued that the delay was justified because the managing partner was out of the country and could not communicate with the Advocate. The Tribunal found this explanation insufficient. It was noted that the managing partner returned to Bombay on 28-4-1986, but the appeal was not filed until 15-5-1986. The Tribunal determined that the managing partner's business trips did not constitute sufficient cause to condone the delay.

5. Legal Precedents and Their Applicability:
The Appellant cited several legal precedents to support the condonation of delay. However, the Tribunal found these cases inapplicable to the present case. In particular:
- The case of Addl. Collector of Central Excise and Customs, Nagpur v. Nadlal Milkiram Bhatia, Amravati, was distinguished because the jurisdiction issue was not raised at the appropriate time.
- The case of Deccan Sales Corporation and another v. Assistant Collector of Central Excise and others was distinguished based on the specific circumstances and form of the order in that case.

6. Board's Responsibility to Forward the Appeal to the Correct Forum:
The Appellant contended that the Board should have forwarded the appeal to the Tribunal. The Tribunal noted that while this might have been a more efficient approach, there was no legal obligation for the Board to do so. The Tribunal referred to a passage in the Central Excise Law Guide by Shri R.K. Jain, which suggested that appeals filed with the wrong authority should be forwarded to the correct authority. However, the Tribunal concluded that the Board's action of returning the appeal papers was not improper or illegal.

Conclusion:
The Tribunal concluded that the Appellant did not demonstrate due diligence in filing the appeal within the prescribed period. The delay was not justified by sufficient cause, and the application for condonation of delay was rejected. The Tribunal emphasized the importance of verifying the correct appellate forum and acting diligently in prosecuting appeals.