1994 (8) TMI 90 - AT - Central Excise

Summary

Issues Involved:
1. Waiver of pre-deposit of Rs. 1,26,086.90.
2. Correct classification of Deflection Components for Black & White and Colour T.V. transformers.
3. Condonation of delay in filing the appeal.
4. Validity of consultant's advice as a ground for delay.

Detailed Analysis:

Waiver of Pre-deposit:
The applicant sought a waiver of pre-deposit of Rs. 1,26,086.90 for the period from July 1989 to January 1990. The primary argument was based on the assertion of wrong advice from their consultant, which led to a delay in filing the appeal. The Tribunal rejected the stay application, directing the applicant to deposit the amount within eight weeks, stating that no strong prima facie case was made for the waiver.

Classification of Goods:
The dispute centered on the correct classification of Deflection Components for Black & White and Colour T.V. transformers. The department classified the goods under Heading 85.04 of the Central Excise Tariff, 1985, while the applicant claimed classification under Heading 85.29. The Assistant Collector confirmed the department's classification based on a previous order by the Collector (Appeals).

Condonation of Delay:
The applicant filed an appeal six months after the order, citing wrong advice from their consultant as the reason for the delay. The lower appellate authority rejected this excuse, stating it did not justify the inordinate delay of three months. The Tribunal required an affidavit from the consultant to support the claim of wrong advice, which the consultant refused to provide.

Consultant's Advice:
The applicant argued that the consultant's advice not to file a separate appeal, due to a pending classification matter, was a sufficient ground for the delay. The Tribunal, however, found no record suggesting that the consultant prevented the filing of the appeal. The majority opinion held that the failure to provide an affidavit from the consultant undermined the applicant's claim.

Separate Judgments:

Judgment by Judicial Member (S.L. Peeran):
The Judicial Member rejected the stay application, directing the applicant to deposit the entire amount within eight weeks. The decision was based on the lack of evidence supporting the claim of wrong advice and the absence of financial hardship or merit in the case.

Judgment by Technical Member (P.C. Jain):
The Technical Member disagreed, favoring a liberal approach in condoning delays. He cited the Supreme Court's judgment in "Collector of Land Acquisition v. Mst. Katiji & Others," emphasizing that substantial justice should prevail over technicalities. He argued that the appeal should be treated as filed in time and remanded to the lower appellate authority for a decision on merits.

Opinion by Third Member (P.K. Kapoor):
The third member agreed with the Judicial Member, emphasizing the need for an affidavit from the consultant to substantiate the claim of wrong advice. He cited the Tribunal's decision in "Atco Industries Ltd. v. Collector of Customs," which held that the plea of wrong advice is not acceptable without an affidavit from the advisor.

Majority Order:
In terms of the majority order, the stay petition was rejected, and the applicant was directed to deposit the entire duty amount within eight weeks. The case was to be listed for compliance thereafter.

Conclusion:
The Tribunal, by majority, rejected the stay application and directed the applicant to deposit the pre-deposit amount. The decision underscored the importance of substantiating claims of wrong advice with concrete evidence and upheld the principle that substantial justice should not be compromised by procedural delays without sufficient cause.