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TMI Blog1992 (6) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... uling rendered by the Tribunal in the case of Ekantika Copiers P Ltd. v. Collector of Central Excise, Meerut [Misc order No. 158/91 B1 dated 22-3-1991 -1991 (56) E.L.T. 350 (Tribunal)]. The ruling of the Larger Bench has decided that separate appeals should be filed when separate numbers are shown in the order-in-appeal. Therefore, it is contended that two supplementary appeals are filed against the order-in-appeal which has disposed of three orders-in-original. They have prayed for condonation of delay. The application is accompanied by affidavits of Shri Y.D. Banga, Assistant Collector of Central Excise who has signed the COD applications. These supplementary appeals have been filed on 16th August 1991. The date of communication has been shown as 14-3-1991. Thus, there is a delay of about 62 days. 3. We have heard Smt. Ananya Ray, learned SDR for the Appellants and Sh. Vinod Aggarwal, learned Advocate for the respondents. The learned DR has relied on the Larger Bench decision and also the practice of the Tribunal to condone the delay in filing the supplementary appeals if the main appeal is in time. The learned Advocate appearing for the respondents opposed the prayer for condo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n below - It is now well settled by the rulings of this Tribunal as noted by learned Member (T) that parties have to file separate appeals against the orders-in-original. The fact that separate appeal with COD application clearly suggests that the COD has to be examined on its own merits and that the earlier appeal filed will not be an automatic reason for condoning the delay unless sufficient reasons assigned in that respect are given. 7. Rights accrued to an assessee on account of the Revenue not preceding to file an appeal by accepting the order of Collector (Appeals) cannot later, after a lapse of time, be allowed to be snatched away from the assessee by permitting the Revenue to persue the appeal remedy by condoning the delay especially where there are serious latches and negligence on their part. The condonation of delay has to be exercised with due care and caution and in such a way as not to take away the rights accrued to the assessee or the Revenue as the case may be. In the circumstances of long delays, the cause shown should be sufficient meaning thereby that the party should show that there is no negligence and latches on his part in filing the appeal and in persu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted to take away a right which has accrued to his advisory by lapse of time; and (f) that proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction and that even after the sufficient cause is shown, a party is not entitled to the condonation of the delay in question as a matter of right and the court of authority hearing the appeal has no power to extend the time as a matter of indulgence". 8. Again this Tribunal has dismissed the appeals as barred by time in the case of Collector of Central Excise v. F.G.P. Ltd. as reported in [1988 (38) E.L.T. 712=1988 (19) ECR 558 (CEGAT SB-A)] applying the rulings of the Supreme Court as laid down in the case of Union of India v. Tata Yodogawa Ltd. reported in [1988 (38) E.L.T. 739 = 1988 (19) ECR 569 (SC)] and that of Ramlal others v. Rewa Coal Fields Ltd. reported in (1962 AIR SC 361). Likewise this Tribunal did not condone the delay in the case of Kanoria Wisconsin Centrifugal Ltd. v. Collector of Central Excise reported in [1990 (48) E.L.T. 596 = 1990 (29) ECR 472 (CEGAT SB B1)]. 9. The learned Member (T) has relied on the ruling of the Collector (Appeals) in the case of Collector, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mwell B as Statutes of Peave (Hunter v. Gibbon) (1956 26 LJ Ex 1 at page 5) though sometimes contrary opinions have been expressed. In re - Baker, Cotton C.J. observed that pleas of limitation would never be looked upon with any favour (1890) Ch D 262 at page 270) since they are used to defeat debts clearly due. It is however, unnecessary to examine further the theory underlying statutes of limitation. We shall proceed on the generally accepted basis that they are designed to effectuate a beneficient public purpose viz. to prevent the taking away from one what he has long been permitted to consider him own and on the faith of what he plans his life, habits and experience. This however does not militate against there being a rational basis for a distinction being drawn between the claims of the state and the claims of the individual in the matter of a provision of a war of limitation for enforcing them." 12. The Supreme Court in Ramlal v. Rewa Coalfields Ltd. reported in AIR 1962 in para 12, page 365 has observed - It is however necessary to emphasise test even after sufficient cause has been shown that a party is not entitled to the condonation of delay in question as a matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (para 330) 330-Policy of Limitation Act. The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation namely (i) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a state claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence." The objection of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party s own inaction, negligence or latches". 13. The Supreme Court in Ajit Singh v. State of Gujarat reported in AIR 1981 733 para 6, has observed that - Now it is true that a party is entitled to wait until the last day of limitation for filing an appeal but when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired, it was not possible to file the appeal within the time. No event or circumstance arising after the expiry of limitation can consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Tribunal as the impugned order-in-appeal disposed of three appeals filed before the Collector of Customs (Appeals). In cases, where the main appeal is filed within the statutory time-limit, but the supplementary appeal is filed after expiry of the three months time-limit, this Tribunal has been condoning the delay in filing the supplementary appeals. The learned advocate has argued that in the present case the main appeal itself was filed after this statutory time-limit and the supplementary appeals were filed after being pointed out by the Tribunal. The department was supposed to know that in such cases the supplementary appeals were to be filed. They should have acted accordingly. Since this was not done, the COD applications in the supplementary appeals should not be allowed in the present case. We have considered this argument of the advocate. After we have condoned the delay in filing the main appeal, we are of the view that the delay in filing the supplementary appeals should also be condoned. Accordingly, We allow these two COD applications also. 6. The undersigned agreed to follow the majority view but however, after pointing out his reasoning given in the case of Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the filing of supplementary appeal and considering of COD has become a mere formality now. The need to examine this issue by larger bench of Five Members is further necessitated by the fact that the issue of filing supplementary appeal against a common order is understood to be seized on this issue by Five Member Bench in A. No. 2454/84-B1 in the case of M/s. Ekantika Copiers v. Collector Central Excise, Meerut. The Andhra Pradesh High Court in the case of Commissioner of Income-tax v.Shri Venkateswara Talkies [1985 (20) Taxman 47] has held that in relation to tax matters, one single appeal is maintainable against a common order passed by the authorities. A similar view has also been taken by the Calcutta High Court in the case of Commissioner of Income-tax v.Rupa Traders [1979 (118) I.T.R. 412]. Even the Tribunal has expressed similar view in the case of Unique Pharmaceutical Laboratories, Bombay v. Collector of Customs [1983 (12) E.L.T. 628 WRB]; Bharat Petroleum Corp. Ltd. v. Collector of Customs, Bombay [1988 (33) E.L.T. 563], Universal Automatic Ancilliary Ltd. v. Collector of Central Excise Customs [1990 (47) E.L.T. 79 WRB]. In view of these conflicting views on the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to condone the COD application when the latches and indulgence are patent on record and no reasons have also been shown for not filing the supplementary appeals, when the Collector had clearly given instructions to do so in his authorisation under Section 35B(2) of Central Excises and Salt Act, 1944. As the Tribunal by their majority view has expressed the view that the delay in filing the supplementary appeals is to be condoned, the undersigned is not in agreement with such findings as it would deviate the right of the opposing party to contest the COD application. In the circumstances, we recommend this Bench to refer this issue to the President for constituting a larger Bench of 5 Members to settle this controversy as per Section 129-C of the Customs Act, 1962. Ordered accordingly. 9. [Order per: G.P. Agarwal, Member (J)]. -I have had the advantage of going through the erudite order proposed by my learned Judicial Member, but I have failed to persuade myself to agree with him. 10. Admittedly, the appellants were required to file three separate appeals against the common impugned Order-in-Appeal whereby the learned Collector (Appeals) had disposed of three different Orders-i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the aforesaid Award and during the pendency of these two appeals before the Allahabad High Court, Shri Wadhya Mal, owner of the truck, also preferred his appeal against the same Award before the Allahabad High Court, which was dismissed on the ground that it was barred by limitation. This conclusion was recorded after the application of the appellant for condoning delay, was rejected. On appeal, by Shri Wadhya Mal before the Apex Court, the Supreme Court set aside the order of the High Court rejecting the application for condoning the delay and subsequently, the order of dismissal of the appeal as time barred and condoned the delay in preferring the appeal and directed the High Court to decide it on merits alongwith other appeals preferred by the injured and insurer, as stated above observing as follows: 5. In view of the fact that the award dated 31-3-1977 is under challenge in two appeals, it is just and proper that the appeal of the present appellant may also be entertained and may be disposed of on merits along with aforementioned two appeals. May be, there was some delay in preferring the appeal by the present appellant......We need not take a very strict view of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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