1995 (10) TMI 103 - AT - Central Excise

Issues Involved:
1. Rejection of appeal by the Collector of Central Excise and Customs (Appeals) as time-barred.
2. Application for Condonation of Delay.
3. Exclusion of time taken for obtaining the certified copy of the order.
4. Time spent in pursuing writ and contempt proceedings.
5. Merits of the appeal and its impact on delay condonation.

Detailed Analysis:

1. Rejection of Appeal as Time-Barred:
The appellants were aggrieved by the rejection of their appeal by the Collector of Central Excise and Customs (Appeals), Pune, on the grounds of being time-barred. The appeal was filed beyond the statutory period of three months and an additional condonable period of three months, making it ineligible for consideration.

2. Application for Condonation of Delay:
The Collector (Appeals) rejected the application for Condonation of Delay, stating, "In this case, there has been a delay over six months in filing the appeal from the date of the order appealed against." The Collector (Appeals) emphasized that under Section 35 of the Central Excises and Salt Act, 1944, an appeal must be filed within three months from the date of communication of the order, with a possible extension of three months for sufficient cause. The Collector (Appeals) found that the appellants did not demonstrate sufficient cause for the delay. The appellants were aware of the appeal process, having previously filed an appeal and a writ petition in similar circumstances.

3. Exclusion of Time Taken for Obtaining the Certified Copy of the Order:
The appellants contended that the time taken to obtain the certified copy of the Order-in-Original should be excluded from the limitation period. However, the Collector (Appeals) found no merit in this argument, as the appellants had filed the appeal using a photocopy of the order already served to them. The Tribunal noted that under Section 35-O, exclusion of time for obtaining a copy applies only when the order was not served initially, which was not the case here.

4. Time Spent in Pursuing Writ and Contempt Proceedings:
The appellants argued that the time spent pursuing writ and contempt proceedings in the Bombay High Court and the Supreme Court should be excluded from the limitation period. The Tribunal rejected this argument, stating that, "in the absence of any stay order or direction to the contrary from the Hon'ble High Court concerned or the Apex Court, the time spent in pursuing the writ petition before these Courts cannot be excluded." The Tribunal cited previous judgments, including Diwan Lime Co. (P) Ltd. v. Collector of Central Excise, Raipur, and Satish Chandra Prahlad Narain v. Collector of Central Excise, to support this position.

5. Merits of the Appeal and Its Impact on Delay Condonation:
The appellants contended that they had a strong case on merits, which should be considered a sufficient reason for condoning the delay. The Tribunal dismissed this argument, referencing the Supreme Court's ruling in State of Gujarat v. Sayed Mohd. Baquir El Edross, which held that the merits of the case do not constitute sufficient cause for condoning delay. The Tribunal affirmed that the appeal could not be heard on merits due to the abatement caused by the delay.

Conclusion:
The Tribunal upheld the rejection of the appeal as time-barred, affirming the Order-in-Original. The Tribunal found no sufficient cause for condoning the delay and rejected the appellants' arguments regarding the exclusion of time for obtaining the certified copy and the time spent in writ and contempt proceedings. The merits of the case were deemed irrelevant for the purpose of delay condonation.

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