TMI Blog1996 (11) TMI 276X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal- (1) .. (2) (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or, as the case may be, the other party preferring the appeal. (4) .. (5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. (6) .. In the case presently under consideration the question relates to consideration of delay in the Collector filing the appeal before the Appellate Tribunal. 3. As will be observed from the above, the time allowed for presenting an appeal under sub-section (3) is three months from the date on which the order sought to be appealed is communicated to the aggrieved party. In this case, the Collector of Central Excise, Hyderabad who was the aggrieved party filed the appeal before the Tribunal on 28-7-1993 which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Tribunal and not for the court. The President directed that the matter be heared by C Bench of the Tribunal as constituted then. 8. When the matter subsequently came up before the C Bench of the Tribunal on 21-3-1996, the Bench found that the affidavit filed by the Collector of Central Excise, Hyderabad in pursuance of the Hon ble High Court s direction dt. 19-12-1995 was defective. The Departmental Representative therefore requested for time to file a proper affidavit. The request was vehemently opposed by the Respondents. After considering the submissions the Bench gave a last opportunity to the Revenue to file a proper affidavit or to bear the consequences. The matter was directed to come up on 30-4-1996. 9. When the matter came up for hearing on 30-4-1996 before the C Bench as constituted on that day the Members of that Bench felt that it would not be proper for them to deal with the condonation of delay (COD) application in view of certain observations in the order of the Hon ble High Court regarding the Members who had earlier heard the Department s COD application. The matter was therefore directed to be heared on 19-6-1996. 10. On 19-6-1996 when the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted as under :- 3. I submit that the relevant facts leading to the filing of application for condonation of delay in filing the appeal before CEGAT are as follows :- In compliance of the direction passed by the Hon ble C Bench of the CEGAT, New Delhi on 28-7-1994 a separate application for condonation of delay is made before your Lordship. There has been a delay of 43 days in filing the appeal beyond the statutory period of three months for the following reasons :- during the period for appeal, the concerned Commissioner Shri Moheb Ali, Collector-II was on leave from 3-5-1993 to 18-6-1993 (Annexure-A). Shri A.K. Chabra, Collector-I was holding additional charge from 3-5-1993 to 21-5-1993. On transfer of Shri A.K. Chabra to Madras, Shri R.K. Chakraborti was holding additional charge of Collector-II from 21-5-1993 to 31-5-1993 (Annexure-B). Shri S.V. Ramakrishnan has reported for duty on 31-5-1993 as Collector-II on his transfer from Bombay Central Excise Collectorate (Annexure-C). Shri S.V. Ramakrishnan, Collector-II was on tour from 1-7-1993 to 11-7-1993. Principal Collector of Customs and Central Excise, Hyderabad Zone was also on tour from 3-6-1993 to 9-6-1993, 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve from 3-5-1993 to 18-6-1993 and another Collector was holding charge of the concerned Collectorate-II from 3-5-1993 to 21-5-1993. Another officer was holding additional charge from 21-5-1993 to 31-5-1993. A regular Collector-II was appointed and joined duty on 31-5-1993. However, the new Collector II was himself on tour from 1-7-1993 to 11-7-1993. Further, the Principal Collector of Central Excise Customs, Hyderabad Zone who was the supervising officer of Collector-II was also on tour between 3-6-1993 and 9-6-1993 and from 14-6-1993 to 4-7-1993 and from 7-7-1993 to 12-7-1993. The D.R. submitted that though Collector-II was responsible for the filing of the appeal, in important matters like the one in the present case, consultations at various higher levels were required to be taken and this necessarily took time and there was no deliberate delay on the part of the Collector in filing the appeal. DR therefore submitted that in the circumstances of the case, having regard to the facts explained in the affidavit, there was sufficient cause to grant condonation of delay in accordance with the provisions of Section 35-B of the Central Excises and Salt Act. 13. The ld. Counsel appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19-6-1996 that inspite of the specific order of the Bench dated 21-3-1996 to file an affidavit and also to place necessary material, the appellants had not placed the necessary material before the Bench. The Tribunal had also stated that if the material was not placed by the appellants they would have to suffer the consequences. In these circumstances, the Counsel submitted that it was for the appellants to show any further material to justify the delay. What has been produced as an affidavit dated 18-4-1996 and Annexures A and B were a mere reproduction of the application dated 29-8-1994 signed by the Collector of Central Excise-II and filed before the Tribunal in the earlier proceedings and a copy each of the letter dated 20-5-1993 from the Principal Collector of Customs Central Excise, Hyderabad to the Joint Secretary (Admn.) in the Central Board of Excise and Customs, New Delhi giving details of the transfers of the Collectors of Customs and Central Excise in the Hyderabad office of the Principal Collector of Customs and Central Excise. The contents of the said letter is the same as the application dated 29-8-1994 by the Collector of Central Excise-II before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had condoned a delay of 12 days by the Collector [Collector of Central Excise v. National Chemical Industries, 1996 (83) E.L.T. 248 (SC)]. Two other decisions of the Tribunal, namely, Collector of Central Excise v. Alliance Udyog, 1993 (64) E.L.T. 258 (Tribunal) and Collector of Central Excise v. Speedway Rubber Co., 1993 (66) E.L.T. 425 (Tribunal) were also cited in support of the prayer for condonation of delay on the ground that the Tribunal had in both the aforesaid cases allowed condonation of delay by the Department. 16. In the case of State of Haryana v. Chandramani Others, supra, though, the Apex Court did not express any opinion on the merits of the case, on the facts and circumstances of the case delay in filing the latters patent appeal was condoned. However, the Court itself observed that no separate standards to determine the cause of delay by the State vis-a-vis a private litigant could be laid down to prove strict standards of sufficient cause. In other words, though, it is not possible to lay down specific standards which would be distinguishable in the case of State vis-a-vis private litigant, a certain latitude in favour of the State would not be im-permis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments relied upon by the adjudicating authority, the Collector was still given sufficient opportunity to place all the material sought to be relied upon. Despite such opportunity being given, the applicant Collector had not been able to place before us any further material in support of his prayer for condonation of delay. 18. In our view, a very general plea of the concerned Collector being transferred and another officer officiating in his place during the relevant period and the officer supervising his functions being on tour or the new Collector himself being on tour for a few days during the period cannot be considered as sufficient cause for condonning the delay. Besides, there is also no explanation as to the delay or inaction on the part of the concerned Collector during the days when he was in office. When the Collector himself has stated in the affidavit that the issue was important with all India remifications, it was all the more necessary that the officers concerned realised the urgency and importance of the matter and the consequences of not filing the appeal in time. 19. In the light of the above discussions, we find no merit in the application for condonation o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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