1991 (8) TMI 203 - AT - Central Excise

Issues: Interpretation of provisions of sub-section (5) of Section 35B of the Central Excises & Salt Act, 1944; Condonation of delay in filing an appeal before a wrong forum; Exclusion of period for which appeal remained pending with the wrong forum from limitation calculation.

Interpretation of provisions of sub-section (5) of Section 35B:
The case involved a Reference Application under section 35G of the Central Excises & Salt Act, 1944, seeking clarification on the interpretation of sub-section (5) of Section 35B. The applicants had initially filed a Revision Application before the Central Government, which was later directed to file an appeal before the Appellate Tribunal. The Tribunal rejected the application for condonation of delay in filing the appeal, citing the company's awareness of the law and lack of bona fide mistaken belief. The rejection was based on the grounds that the delay was not acceptable, and the rejection was not an order under Section 35C, thus not forming the basis for a reference to the High Court under Section 35G.

Condonation of delay in filing an appeal before a wrong forum:
The applicants sought condonation of delay in filing the appeal before the Appellate Tribunal, arguing that a bona fide mistake led them to file a Revision Application instead. The Tribunal rejected the condonation application, emphasizing the company's awareness of the law and the rejection not being an order under Section 35C, hence not eligible for reference to the High Court. The rejection was based on the grounds that the delay was not justifiable due to the company's status as a well-known manufacturing entity.

Exclusion of period for which appeal remained pending with the wrong forum from limitation calculation:
The Tribunal's rejection of the application for condonation of delay was based on the fact that the rejection was not an order under Section 35C, making it ineligible for reference to the High Court under Section 35G. The rejection was upheld, emphasizing that the provision allowing admission of an appeal after the prescribed period is under sub-section (5) of Section 35B, not Section 35C, and thus cannot be the basis for a reference to the High Court. The rejection highlighted the importance of following specific provisions and the lack of grounds for considering the period during which the matter was pending with the Central Government as excludible from the limitation calculation.

In conclusion, the Tribunal's decision to reject the application for condonation of delay in filing the appeal was upheld, emphasizing the specific provisions of the Act and the lack of grounds for making a reference to the High Court based on the rejection. The rejection was deemed not to be an order under Section 35C, preventing it from forming the basis for a reference under Section 35G. The importance of following statutory provisions and the company's awareness of the law were crucial factors in the Tribunal's decision.

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