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TMI Blog1986 (7) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal and he was advised to file the appeal before the Appellate Tribunal. It was then stated in the application as the managing partner of the Applicants was out of India almost for the whole of the month of April and on his coming to Bombay once again he made necessary enquiry with the Office of the Central Board of Excise and Customs and a confirmation from the said office that the appeal would lie before Customs, Excise and Gold (Control) Appellate Tribunal, Bombay, the appeal was filed before the Tribunal on 14th May, 1986. 2. In the application, the Applicant did not state any reasons as to why the appeal was not filed before the Tribunal after the receipt of the communication from the Central Board of Excise and Customs except of course that the Applicant was out of India for the whole of the month of April and on his coming to Bombay he made necessary enquiry with the office of the Central Board of Excise and Customs to confirm, but then when the application came up for consideration Shri R.J. Majra, Advocate for the Applicant sought time to file an affidavit of the managing partner. His request was granted and the managing partner had filed the affidavit. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve forwarded the appeal directly to the Tribunal. In that event the Tribunal would have entertained the appeal and the question of filing condonation application would not arise. Finally, Shri Majra contended that the only male partner is the managing partner was out of Bombay during the whole of the month of April and upto 10th May and there has been no negligence or inaction on the part of the applicant. In the circumstances, the delay may be condoned. 4. Shri Senthivel, the learned Senior Departmental Representative, however, vehemently opposed the delay condonation application. He urged that the contention of the Applicant that he was misled by the preamble to the order cannot be accepted. There is a primary responsibility on the party to ascertain as to the appellate forum. If the party has been diligent, he should have known as to which was the appellate forum. The appeal is provided under the statute and the Advocate would have known this statutory provision. It was further contended by Shri Senthivel that even according to the Applicant, the Board communicated to him that appeal would lie to the Tribunal and the Advocate received the communication on 3-4-1986 and no appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s letter dated 25-3-1986 received by the Advocate on 3-4-1986 communicated to the Appellants that the appeal has to be filed before the Tribunal and within 3 months from that date the appeal had been filed and therefore there was no delay in presenting the appeal. 7. Undisputably the preamble to the Collector s order require the Appellants to file the appeal before the Central Board of Excise and Customs, New Delhi. In the preamble it was also stated that the appeal should be filed within 3 months from the date of receipt of the order. The Appellant had not only filed the appeal before the Central Board of Excise and Customs but had also filed within the prescribed period of limitation. If the Central Excise and Customs was the appellate forum, the appeal would have been within time. Similarly, if the Board instead of returning the records to the Appellants had sent the records to the Tribunal directly then also the appeal would have been on time. But when the Board did forward the records to the Appellant s Advocate and the Advocate received the records on 3-4-1986. The period of limitation would expire on 17-4-1986. The Appellant had sufficient time to file the appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur v. Nadlal Milkiram Bhatia, Amravati, the Tribunal did not go into the question of limitation. The facts of that case were the party filed an appeal before the Collector of Customs (Appeals), instead of before the Gold (Control) Administrator and the appeal was filed because of the order of the Additional Collector of Customs. The Collector of Customs (Appeals) decided the appeal on merits. Against his order, the Department preferred an appeal before the Tribunal and contended that the order passed by the Collector of Customs (Appeals) was without jurisdiction and therefore his order is a nullity. A single Member of this Bench Shri Harish Chandra rejected the above contention holding that there had been no failure of justice and the Department was estopped from contending that the appeal was wrongly filed. It is seen from the facts of that case that the Department did not raise any objection regarding the jurisdiction when the matter was before the Collector (Appeals). In the said circumstances, this Bench had held that there had been no failure of justice. In any case the said decision has no bearing to the fact s of this case. In Deccan Sales Corporation and another v. Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by urging that he received the letter of the Board only on 3-4-1986. But then the Appellant s managing partner was out of India and as such he could not communicate to him in the whole of the month of April 1986. It was further submitted that even though the Appellant s managing partner came to Bombay on 28-4-86, he could not meet his Advocate and for business tour he was out of Bombay till 10-5-1986 and immediately on return on 12-5-1986, he approached his Advocate and within 3 days the appeal had been filed. Therefore, there was no negligence on the part of the Appellant and the delay in the circumstances may be condoned. Shri Senthivel rightly contended that though there may be some justification for the Appellant not to file the appeal upto 3-4-1986, there was no justification whatsoever for not filing the appeal till 15-5-1986. Shri Senthivel s contention that managing Director s visits to various places for business purposes would not constitute sufficient cause to condone the delay. There is considerable force in this contention. The explanation offered was that the managing partner was out of Bombay for business purposes. This clearly indicates that the filing of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 1006 in Central Excise Law Guide by Shri R.K. Jain, 5th Edition, under the heading Appeal filed with wrong authority . The learned author has stated the appeals should be filed with the appropriate authorities as specified in para 62.01, otherwise, it will be deemed to have not been filed. However, the Supreme Court in the case of Assam Cooperative Sugar Mills v. Central Board of Excise and Customs decided to make over the appeal wrongly filed with the Collector of Central Excise, Shillong to the Appellate Collector of Central Excise, Calcutta, who was the appropriate authority . After referring to an order of the Appellate Collector, Bombay, the learned author observed on the same analogy, if the appeal has been filed with the wrong authority but within time it should be made over to the appropriate authority and should be taken as having been filed within time, even though appeal to appropriate authority is filed subsequently . The learned author has cited the Government of India decision in Sainta Cement Works 1982 E.L.T. page 617 (G.O.I.). 12. The above passage undoubtedly supports the contention of Shri Majra. But then under the Civil Procedure Code, if a suit has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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