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TMI Blog1995 (10) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... y over six months in filing appeal from the date of the order appealed against. In this regard provisions of Section 35 are very clear as they require that an appeal should be filed within three months from the date of communication to the appellants of the decision or order appealed against. The proviso to Section 35 further empowers Collector (Appeals) to accept appeal within a further period of three months if he is satisfied that the appellant was prevented by sufficient cause for presenting the appeal within the prescribed limit of three months. In the present case, the order was known to the appellants on 13-4-1992 and as per their contention was communicated to them on 27-4-1992. Therefore, the appeal should have been normally filed by 27-7-1992 and a further period of three months could have been allowed on genuine reasons, but in no case, can be filed after 27-10-1992. Thus, in view of the specific provisions I am not empowered to condone the delay beyond 27-10-1992. Besides, I find that the appellant has not been able to show sufficient cause for not filing appeal within time. I find that the appellants were quite aware that against order of the Assistant Collector, appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of even dates for Rs. 1,10,81,405.94 and imposed a penalty of Rs. 500/- on the assessee. Aggrieved by the said order, the assessee filed an appeal before the Collector (Appeals), Bombay, along with the stay application. During the pendency of the stay application before the Collector (Appeals), the appellants also approached the Bombay High Court, Aurangabad Bench, and the Court granted ad interim relief on the condition that the appellants would deposit Rs. 56,00,000 against the said demand. Accordingly, the appellants deposited Rs. 56,00,000/- during the period from January 1986 to August 1986. Thereupon the High Court stayed the enforcement of the demand confirmed by the Assistant Collector. The Department moved the High Court with a request for withdrawal of the said amount deposited by the appellants. The High Court on 19-2-1986 allowed the Department to withdraw the said amount of Rs. 56,00,000/- deposited by the appellants subject to the condition that the Department should pay interest at bank rate and refund the amount along with interest provided that the appellants succeed in their Writ Petition. Accordingly, the Department withdrew the said amount of Rs. 56,00,000/-. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of Rs. 56,00,000/- deposited by the appellants in the High Court was a deposit for a conditional stay. The Court further rejected the appellants contention that the deposit was not a duty within the meaning of Section 11B of the Act. However, the Court left open the question of legality of the impugned order of the Assistant Collector dated 13-4-1992 and the appellant was to pursue the remedy in that behalf as per the provisions of law. Thereafter, the appellants filed their appeal against the said order of the Assistant Collector dated 13-4-1992 before the Collector (Appeals) on 18-2-1993. To support his contention that the time so consumed in pursuing the writ proceedings and contempt proceedings be treated as sufficient cause he cited the case of Madura Coats Ltd. v. Collector of Central Excise, Madurai, 1994 (71) E.L.T. 347 (SC), wherein the Apex Court while disposing of the appeal (Civil) filed before it observed that, in case the appeal is filed by the assessee therein within two weeks from the date of the order before the Tribunal, the appeal shall not be dismissed as time barred and the pendency of the proceedings in the High Court as well as in that Court (Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) erred in not excluding the time taken for obtaining the certified copy of the said order of the Assistant Collector. He emphasised that even where the certified copy is not required to be enclosed with the Appeal Memorandum, the time taken for obtaining the certified copy of the impugned Order is to be excluded while computing the period of limitation prescribed under the law. To support his contention, he cited the following cases : S.T. Commr., U.P. v. M.D. Sons, AIR 1977 SC 523; State of U.P. v. Maharaja Narain, AIR 1968 SC 960; Jagat Dhish v. Jawahar Lal, AIR 1961 SC 832; and also to the cases reported in 1977 (110) ITR 25; (101) ITR 334; and 1987 (28) E.L.T. 185 (SC) = AIR 1987 SC 1353 - Collector, Land Acquisition, Anantnag v. Katiji. 4. In reply Shri K.K. Dutta, Ld. JDR submitted that under the Proviso to Section 35(1) of the Central Excises and Salt Act, 1944 the Collector (Appeals) has no powers to condone the delay beyond 3 months and since the appeal before him [Collector (Appeals)] was filed beyond 3 months he rightly rejected the appeal as time-barred. As regards the contention of the Ld. counsel that the time requisite for obtaining the copy of the impugned Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 7. From a perusal of the said Section it is clear that the Collector (Appeals) can condone the delay of three months if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the time prescribed that is to say the period of three months. In the instant case it is not in dispute that the Order-in-Original of the Assistant Collector No. 16/92, dated 13-4-1992 passed by the Assistant Collector of Central Excise and Customs was communicated to them on 27-4-1992 and the appeal should have been normally filed by 27-7-1992 and a further period of three months in filing the appeal can be condoned if the Collector (Appeals) was satisfied that there was sufficient cause. In the case in hand the appeal was filed beyond the total period of six months. Therefore, in view of the said specific provisions the appeal was rightly rejected by the Collector (Appeals) as time-barred. This Tribunal has consistently taken the same view (see Max Machinery Manufacturing (P) Ltd. v. Collector of Central Excise, 1991 (56) E.L.T. 612, Ramesh S. Jain v. Collector of Customs (P), 1993 (63) E.L.T. 285, Meghalaya State Electricity Board v. Collector of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the respondents. Therefore, the question of exclusion of the time, if any, required in obtaining the certified copy is not to be excluded while computing the period of limitation prescribed under Section 35 of the Act. Even there is nothing on record to establish that the appellants ever applied for the certified copy and if so, the date on which they applied and the date on which it was delivered. Under these circumstances, the said contention of the Ld. counsel has no force. As regards the time spent in pursuing the writ proceedings before the Hon ble High Court and before the Hon ble Apex Court it may be stated at the outset that in the absence of any Stay Order or direction to the contrary from the Court concerned the time spent in pursuing the writ petition cannot be excluded. In the case of Diwan Lime Co. (P) Ltd. v. Collector of Central Excise, Raipur (Appeal No. E/1779/93-C) the same contention was advanced by the assessee therein on the principles of Section 14 of the Limitation Act and the Tribunal vide its Final Order No. 60/94-C with Misc. Order No. 29/94-C and Stay Order No. 20/94-C, dated 9-2-1994 (to which I was a party) held that mere filing of the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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