9911796707
TMI Blog1986 (4) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... e was issued on 22-2-1977 alleging that during the period 1-4-1974 to 31-12-1976 the appellants received 29,494 compressors in their factory for repairs which were freshly manufactured and were cleared without payment of central excise duty amounting to about Rs. 3 crores. The appellants raised various contentions which are not germane at this stage. Ultimately, the Collector passed orders on 14-6-1977 confirming the duty demand of about Rs. 3 crores and also imposed a penalty of about Rs. 3 crores. 4. The order of the Collector was received by the appellants on 18-6-1977. It is alleged by the appellants that 18-6-1977 was Saturday, 19-6-1977 was Sunday, 20-6-1977 (Monday) was a holiday for the factory and hence by mistake the appellants employee affixed the date stamp of the receipt of the order as 21-6-1977. Based on that calculation, the appellants preferred an appeal on 21-9-1977 to the Central Board of Excise and Customs under the then Section 35 of the Central Excises and Salt Act, 1944. This appeal was admittedly filed three days beyond the three months period of limitation prescribed. On 3-6-1978, Shri M.R. Ramachandran, Member of the Board passed orders holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he held that the appeal under Section 35 was clearly, undoubtedly and irrevocably statutorily time-barred. He further observed as follows : It is now for the appellants" or as they should now be rightly called the revisionists to move the Board to give them relief if the Board so considers under Section 35A of the Act." 7. The appellants filed a revision petition under Section 36 on 16-11-1981 which was pending before the Central Government and has now come up before us as a transferred proceeding. 8. The matter was also argued before the Member (Central Excise) of the Board, Shri Bandhopadhyay on the question of maintainability of the revision under Section 35A. A request was made that the Member ought to grant further opportunity to the appellants to address arguments on the merits of the case. The appellants wanted to make out that the order of the Collector dated 14-6-1977 was ex facie illegal and unsustainable. It was understood that the appellants would be given further opportunity to make their submissions on the merits of the case. However, on 15-4-1982 the Member (Central Excise) of the Board rejected the petition on the ground of being not maintainable (sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court should be accepted as binding. 11. Regarding the order passed by Shri Bandopadhyay under Section 35A, he emphasised that the learned Member had proceeded on the basis that he had to review the order of Shri Venkataraman which was erroneous. The review sought for by the appellants was in respect of the original order of the Collector and not the order of the Board. The order of Shri Ramachandran had been set aside by the Special Secretary and the review could be only of the order passed by the Collector. The construction of Section 55A by the Member of the Board was, therefore, not correct. The learned Counsel argued that the findings of the Judicial Member (Board) dismissing the appeal on the ground of limitation should not have been adverted to by the Member (Central Excise). At one breath the learned Member (Central Excise) had said that he would not go into it and at the same time has considered the merits of the Collector s order. Shri Sorabjee vehemently urged that at any rate the order was not justified because no opportunity was given to the appellants to argue the revision petition under Section 35A on merits. At para 9, it is observed Without going into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the question of equities and the decision did not lay down the law finally. He drew our attention to the following decisions for the proposition that the Limitation Act would not apply to proceedings before the Tribunal: 1. AIR 1970 S.C. 209 - (Nityanand M. Joshi another v. The Life Insurance Corporation of India and others) It seems to us that the scheme of the Indian Limitation Act. is that it only deals with the applications to courts and the Labour Court is not a court within the Indian Limitation Act, 1963. 2. AIR 1975 S.C. 1039 - The Commissioner of Sales Tax, UP, Lucknow v. M/s. Parson Tools Plants, Kanpur. Authorities functioning under Sales-tax Act are merely administrative Tribunals and not Courts and Section 14(2) of the Limitation Act does not apply to proceedings before such Tribunals." 3. 1985 (22) E.L.T. 327(S.C.) - Sakura v. Tanaji Provisions of the Limitation Act, 1963 apply only to proceedings before courts" and not to appeals or applications before bodies other than courts such as quasi-judicial Tribunals or executive authorities notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Central Excise authorities, the legal principles set out therein would apply to the present facts. Even in respect of Sales-Tax Tribunals, Labour Courts and other appellate authorities, the decisions enumerated above indicate beyond doubt that quasi-judicial Tribunals are governed by the provisions of the Statute and cannot take recourse to the provisions of the Limitation Act. Section 35 of the Central Excises Act does not confer any power on the Board to condone the delay. The decision reported in Nirlon Fibres, no doubt, expresses the view of the learned Judges that the benign purpose of Section 5 should ordinarily be extended to proceedings under the Customs Act as well. That was a case for refund and it was rejected as barred by limitation under Section 27 of the Customs Act by the lower authorities. We must also mention that on appeal to the Hon ble Supreme Court, the learned Solicitor General, who appeared for the Union of India, fairly agreed that the case did deserve examination on merits of the claim for refund. Both sides agreed that with regard to the question of limitation the substance of the claim would be examined by the Central Government. No final decision was g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether it could not be dealth with as a revision. It is true, that only on 3-8-1978, the appellants had made a representation to the Central Board to treat their appeal as a revision. But one cannot construe that this representation was made after one year as the orders of the Government would relate back to the date of the appeal. The Government had considered all aspects of the matter, and gave a direction that it should consider whether the appeal could not be dealt with as a revision petition under Section 35A. The prayer by the appellants in the Revision Petition was to exercise the powers under Section 35A and to set aside the order of the Collector dated 14-6-1977. They sought a review under Section 355A of the Original Order dated 14-6-1977 passed by the Collector, Central Excise, Hyderabad. Since the appellate authority had rejected the appeal as time-barred, there was no effective disposal of the matter. This view is also in conformity with the decision of the Tribunal in M/s. Hindustan Conductors, Azamgarh v. C.C.E., Allahabad (Order No.49/85-B-1 in appeal No. ED(SB)A-648/81-B, dated 6-9-1985 - where the Tribunal has relied on the decision of Supreme Court ip AIR 1976 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellants to address arguments on the merits of the revision. The preliminary contentions are disposed of accordingly. [per: H.R. Syiem, Member (T)]. - 21. Great reliance was placed by the learned Counsel for M/s. Shriram Refrigeration of the decision of the Madras High Court 1985 (22) E.L.T. 17 re: Ashok Leyland, Madras. The High Court ruled that the principle of merger cannot come into play when the appellate authority rejected the appeal on the ground that it had been filed out of time. It was only when the appellate authority entertains the appeal and deals with it on merits, that the original order should be taken to have merged in the order of the appellate authority, in such cases, the party cannot file a revision against the order of the original authority ignoring the order passed by the appellate authority. This ruling, however, runs counter to an earlier decision of the Supreme Court 1956 SCR 166 : M/s. Mela Ram that an appeal presented out of time was still an appeal and an order dismissing it as time barred was an order made in appeal. 22. Therefore, when the member of the Central Board of Excise and Customs, New Delhi, Mr. Ramachandran passed his order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. 24. The order by the Member of the Central Board of Excise and Customs, Mr. Bandyopadhyay, No. 3/82 of 1982, dated 15-4-1982 resulted from the order passed by the Government of India. Curiously enough the Board considered the appeal afresh and by an order in appeal No. 697/80, dated 29-11-1980 issued on 13-5-1981 member of the Board Mr. Venkataraman rejected the appeal as time barred. He had no need to do so because the directive of the Government of India was only to the Board to consider the appeal under its power of revision under Section 35A of the Act and not to consider the appeal afresh. Anyhow, the member, Mr. Bandyopadhyay s order of 15th April, 1982 can be said to be the direct consequence of the Government of India s order dated 21-7-1980. 25. Many faults were found by the learned Counsel for the appellants M/s. Shriram Refrigeration with this order of Mr. Bandyopadhyay and I for one am in agreement that it was indeed faulty and totally avoidable. The most notable is that the Board member went into the details and merits of the case in paragraph 9, and ends by giving a finding that he found prima facie that there was no serious infirmity in the Collector s order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of his decision. All this while, the party was never told of any appeal remedies even when it discussed the subject with the Assistant Collector on 13-9-1976. On 18-10-1976 the Assistant Collector told the assessee that he (A.C.) could not deal with the case afresh, upon which the party filed a 35A petition to the Board. It was this petition that the Government of India directed should be decided on merits in conformity with the provisions of Section 35A . The important point here is that the aggrieved party received no information about the appellate remedies and that in the end it petitioned the Board under Section 35A and this petition was rejected. The Government of India in deciding the case directed that this same petition presented to the Board could be taken into consideration by the Collector as a review petition and dealt with by him on merits under the provisions of Section 35A. The order was, therefore, a remand to the Collector to consider as a revision petition, an application that was in fact filed as a revision petition and under the same provision of law. It was not a remand directing that an appeal which had been lawfully decided and rejected should be again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the predecessor authority of this Tribunal and had exercised the jurisdiction which this Tribunal is now exercising. No further appeal or revision lay from the orders of the Central Government passed in revision. These were final orders, subject only to modification or reversal by a High Court or the Supreme Court. The order passed by Shri Narasimhan in this case has not been varied by any High Court or the Supreme Court. It has, therefore, become final and it is binding on all the authorities constituted under the Act and which were functioning under the Central Government including the Board. There was no option available to the Board except to comply with this order. 32. But has it been complied with? Brother Syiem has extracted Shri Narasimhan s order in paragraph 23 above. It is quite evident that Shri Narasimhan s order was a composite order. It remanded the matter to the Board and directed the Board to hear the appellants on the question of delay, if any, in filing their appeal. Even if the appeal was time barred, Shri Narasimhan s order stated, the Board should consider whether the appeal filed by the appellants could be treated as a revision under Section 35A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government stands and it has to be complied with on its plain terms. It is no longer possible to remand the matter once again to the Board for due compliance with the order. Both appellate and revisional jurisdictions under the erstwhile Sections 35 and 35A of the Act, which were earlier exercised by the Board, now vest in this Tribunal. The revisional jurisdiction of the Central Government under the erstwhile Section 36 also vests in this Tribunal. The mantle of complying with the Central Government s Order-in-Revision has, therefore, now fallen on this Tribunal. 35. The appeal filed by the appellants on 21-9-1977 was admittedly time-barred. The effective issue now remaining to be decided by this Tribunal, as the successor authority of the Board, is contained in the second part of Shri Narasimhan s order. To put it simply, the question before us is whether the appeal filed by the appellants on 21-9-1977 could be treated as a revision under Section 35A as it then existed. On this issue, I find guidance from the judgment of the Hon ble Delhi High Court reported in Mehta Teja Singh and Co. v. Fertilizer Corporation of India, Ltd. and another AIR 1968 Delhi 188. I quote fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
