1986 (4) TMI 228 - AT - Central Excise

Issues Involved:
1. Whether the order of dismissal passed by the Board Member (Judicial) is justified.
2. Whether the appeal should be construed as a revision and the order passed by Shri Bandopadhyay, Member, Central Excise, was justified.

Detailed Analysis:

Issue 1: Justification of Order of Dismissal by Board Member (Judicial)
The appellants received the order from the Collector on 18-6-1977 but mistakenly recorded it as 21-6-1977. Consequently, the appeal was filed on 21-9-1977, three days beyond the limitation period. The Board Member (Judicial) dismissed the appeal as time-barred, citing that quasi-judicial tribunals like the Board are governed by statutory provisions and cannot apply the Limitation Act. The Supreme Court's decision in 1985 (22) E.L.T. 327 affirmed that the Limitation Act does not apply to quasi-judicial tribunals. Thus, the appeal was barred by limitation under Section 35 of the Central Excises Act.

However, it was argued that the Member (Judicial) should have awaited the decision in the parallel proceedings before finally disposing of the matter. The Tribunal concluded that while the dismissal on the ground of limitation was justified, the appeal should have been kept pending until the disposal of the other appeal.

Issue 2: Appeal as Revision and Justification of Order by Shri Bandopadhyay
The Special Secretary had directed that even if the appeal was time-barred, the Board should consider whether it could be treated as a revision under Section 35A. The Member (Central Excise) held that the Board was barred from revisional jurisdiction once an Order-in-Appeal had been passed. This view was contested, citing the Madras High Court's decision that even if an appeal is time-barred, it does not preclude the consideration of a revision. The appellants' representation to treat the appeal as a revision was made within a reasonable period, and the Government's directive should be followed.

The Tribunal found that the Board's decision to reject the revision petition without hearing the appellants on merits was not justified. The appellants should have been given an opportunity to argue the merits of the case, especially considering the significant duty and penalty involved.

The Tribunal concluded that the revision under Section 35A is maintainable and the order of the Member (Central Excise) cannot be sustained. The appellants should be given an opportunity to address arguments on the merits of the revision.

Tribunal's Order:
1. Appeal No. 711 of 1981 should be kept pending until the disposal of Appeal No. 1091 of 1982.
2. In Appeal No. 1091 of 1982, the appellants will be given an opportunity to address arguments on the merits of the revision.

Separate Judgment:
Per H.R. Syiem, Member (T): The Madras High Court's ruling in Ashok Leyland, Madras, was relied upon, stating that an appeal dismissed as time-barred does not merge the original order into the appellate order. The Special Secretary's order was not binding on the Board to consider the appeal under its power of revision. The order by the Member of the Central Board of Excise and Customs, Mr. Bandyopadhyay, was found to be faulty as it went into the merits of the case without proper grounds.

Per K.L. Rekhi, Member (T): The Tribunal should not question the order-in-revision passed by the Central Government, which is final and binding. The Board's compliance with the order required a composite approach, which was not followed. The Tribunal, as the successor authority, must now comply with the Central Government's order. The appeal should be treated as a revision under Section 35A, and the appellants should be heard on merits.

Tribunal's Final Order: The matter is to be decided in terms of paragraph 20, with Appeal No. 1091/82-B1 to be fixed for hearing on merits of the revision under Section 35A. The matter should not be treated as part heard.

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