1987 (5) TMI 139 - AT - Central Excise

Summary

Issues:
1. Timeliness of filing an appeal under Section 35 of the Central Excises and Salt Act.
2. Interpretation of the date of filing an appeal sent by post to the Appellate Collector.
3. Applicability of the decision in Viresh Kumar and Brothers v. Collector of Customs, Bombay.
4. Condonation of delay in filing an appeal under Section 35 of the Central Excises and Salt Act.

Issue 1: Timeliness of filing an appeal under Section 35 of the Central Excises and Salt Act

The case involved M/s. Gobind Sugar Mills Ltd. appealing against an order-in-original of the Assistant Collector to the Appellate Collector of Central Excise. The Appellate Collector rejected the appeal as it was received after the 3-month limitation period from the date of the original order. The appellants argued that the appeal was filed within time based on the date of delivery to the post office. However, the Appellate Tribunal found that the appeal was received in the Appellate Collector's office one day after the limitation period had expired, leading to the dismissal of the appeal.

Issue 2: Interpretation of the date of filing an appeal sent by post to the Appellate Collector

The key contention was whether the date of filing an appeal sent by post should be based on the date of posting or the date of actual receipt in the Appellate Collector's office. The Tribunal differentiated this case from appeals to the Tribunal, where the date of filing is considered the date of receipt in the Registry. In this instance, where no provision allowed for sending appeals by post to the Appellate Collector, the date of actual receipt in the office was deemed crucial. The Tribunal followed the decision in F.N. Roy v. Collector of Customs, Calcutta, emphasizing that the date of receipt in the office is determinative.

Issue 3: Applicability of the decision in Viresh Kumar and Brothers v. Collector of Customs, Bombay

The appellants relied on the decision in Viresh Kumar and Brothers v. Collector of Customs, Bombay, which dealt with appeals to the Tribunal sent by post. However, the Tribunal clarified that the rules for appeals to the Tribunal differ from appeals to the Appellate Collector. In cases where no provision exists for sending appeals by post, the general rule is that appeals should be physically presented in the office of the Appellate Collector for timely filing.

Issue 4: Condonation of delay in filing an appeal under Section 35 of the Central Excises and Salt Act

The Tribunal noted that under Section 35 of the Central Excises and Salt Act at that time, the Collector had no power to condone the delay in presenting an appeal. This lack of authority for condonation further supported the dismissal of the appeal due to being one day late. The Tribunal's decision highlighted the importance of adhering to the prescribed timelines for filing appeals in excise matters.

*Editor's Comments:* The editor's comments provided additional insights on the general rule that the date of receipt in the office of the Appellate Authority is crucial for determining the filing date of an appeal sent by post. The comments also referred to a Gujarat High Court decision regarding appeals invited by post and the contradictory decisions on the applicability of Section 5 of the Limitation Act to proceedings before the Appellate Authority. These comments highlighted the need for a comprehensive argumentation on legal precedents to ensure a robust legal position in such cases.