1992 (7) TMI 219 - AT - Central Excise

Summary

Issues:
Delay in filing appeal under Sec. 35B(2) of the Central Excises & Salt Act, 1944; Condonation of delay under sub-section (5) of Section 35B; Effect of erroneous legal advice on filing appeal; Just cause for condonation of delay; Misdirection due to legal opinion; Application of legal precedents on condonation of delay.

Analysis:
The judgment involves a case where the applicants sought condonation of delay in filing an appeal against an order-in-appeal of the Collector of Central Excise and Customs, Nagpur. The appeal was filed over eight months after the statutory period of three months specified in Sec. 35B(2) of the Act. The applicants argued that the delay was due to erroneous legal advice given by their lawyer, which led them to believe the order was not worth challenging. They relied on legal precedents to support their plea for condonation based on the lawyer's advice. The Senior Counsel contended that the delay should be condoned as there was no negligence on the part of the applicants.

The Respondent, represented by the ld. SDR, opposed the condonation, arguing that the delay was significant and that the applicants' decision not to appeal was based on their own conviction after consulting legal experts. The SDR distinguished the legal precedents cited by the Senior Counsel and highlighted a previous decision by the same Bench rejecting a similar plea for condonation.

The Tribunal considered the arguments and the facts presented. It noted that there was no affidavit or written opinion from the Senior Counsel regarding the advice given. However, it accepted the Counsel's statement that he advised against filing an appeal. The Tribunal observed that the applicants only decided to challenge the order after a different decision by another Tribunal bench. The key issue was whether the applicants could claim misdirection due to the legal opinion when a subsequent decision cast doubt on the legal position.

The Tribunal analyzed legal precedents, including decisions by the Supreme Court and High Courts, emphasizing that condonation of delay should not be granted if there was no negligence or lack of bona fides on the part of the applicants. It noted that the applicants had accepted the Collector's decision and allowed the time to lapse until a conflicting view emerged. The Tribunal concluded that the delay was not justified by just and sufficient cause, as the applicants had not shown any negligence or intention to appeal until the new point arose. Therefore, the application for condonation was rejected, and the appeal was dismissed as filed beyond the limitation period.