1989 (5) TMI 208 - AT - Central Excise

Summary

Issues: Appeal against time-barred order

The appeal was directed against the order passed by the Collector of Central Excise (Appeals), Delhi, rejecting the appeal as time-barred. The appellant argued that the delay in filing the appeal was due to pursuing a writ petition before the High Court and the Supreme Court, with the Supreme Court decision being given on 5-10-1987. The appellant requested an opportunity to explain the delay and argued that the time spent in pursuing the case before the courts should be excluded from the calculation of the time limit.

Analysis:

The appellant received the Assistant Collector's order on 24-10-1986 and filed the appeal before the Collector (Appeals) on 4-12-1987, which was after a period of 1 year, 1 month, and 10 days. Section 35A of the Central Excises and Salt Act, 1944 mandates that an appeal must be filed within 3 months from the date of the communication of the order appealed against. The statute allows the Collector (Appeals) to condone the delay for a further period of 3 months if there is sufficient cause. However, there is no discretion provided to condone the delay beyond a total of 6 months. The appellant's argument that the Collector (Appeals) should have sought an explanation for the delay before rejecting the appeal does not hold, as the legal position does not provide for such discretion.

The appellant had filed writ petitions before the High Court, which directed them to pursue statutory appellate remedies. The Supreme Court upheld the High Court's decision on 5-10-1987. However, there was no direction in the Supreme Court's order to exclude the period spent in pursuing the remedy before the courts for the purposes of limitation. Given the legal position and the lack of authority for the Appellate Authority to condone delays of more than 3 months, the rejection of the appeal as time-barred was deemed correct. The Tribunal concluded that there was no necessity to provide a hearing when the appeal was dismissed as being beyond the 6-month time limit, as per the legal provisions. Consequently, the appeal was rejected as lacking substance.