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TMI Blog1989 (7) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for appeal in the Central Excises & Salt Act. However, the Central Government was conferred with the revisional power under erstwhile Section 36(2) of the Central Excises & Salt Act either suo motu or otherwise to call for and examine the record of any proceeding in which any decision or order has been passed under erstwhile Section 35 or 35A of the Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order. This power of revision was subject to a period of limitation of one year in terms of second proviso to sub-section (2) of Section 36. For ready reference the said sub-section (2) of Section 36 insofar as relevant is reproduced as below - "Revision by Central Government - (1) **** (1A)******* (2) The Central Government may, of its own motion or otherwise, call for and examine the record of any proceeding in which any decision or order has been passed under Section 35 or Section 35A of this Act for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit: Provided ****** Provided further that no proceedings shall be commence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t needs to be mentioned here that in order to remove any difficulty which may arise in giving effect to the aforesaid new provisions in the Central Excises & Salt Act, 1944, the Central Government was conferred with the powers to pass any general or special order which appears to be necessary or expedient for the purpose of removing such difficulty, under sub-section (3) of Section 50 of the Finance (No. 2) Act of 1980. Exercising these powers the Central Government passed "The Customs, Central Excise & Gold (Control) Removal of Difficulties Order, 1982 making the provisions of this Order enforceable from 11th day of October, 1982. Paragraph 3 of the said Order provides that the period within which the appeal against any order passed before the appointed day (i.e. 11th October, 1982) by the authorities concerned, in our case Appellate Collector, may be filed shall be six months from the date on which the impugned order is communicated to the Central Excise or to the other party preferring the appeal. The said paragraph 3 is extracted below for ready reference- "3. The period within which an appeal against any order passed before the appointed day, by - (a) the Central Board of Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p for hearing by the referring Bench on 8-7-1987. Arguing on the application for condonation of delay it was contended by the learned Departmental Representative, relying on the decision of this Tribunal rendered in the case of Collector of Central Excise, Bombay v. Crescent Dyes & Chemicals Ltd., 1984 (16) E.L.T. 445 that this Bench should in the first instance satisfy itself as to whether there was, indeed delay in filing the appeal during the prescribed period of limitation. Elaborating on her arguments it was contended by the Departmental Representative that though the impugned order passed by the Appellate Collector is dated 18-3-1982, it was issued only on 12-4-1982 as would appear from the endorsement appearing on the impugned order. She stated that this order was served on the appellant on 12-4-1982 or a day after. She emphasised that there was no right of appeal at that time and there was only a remedy of revision under Section 36(2), as it then stood. The right of appeal in such matter came to be conferred for the first time on 11-10-1982 when this Tribunal was constituted. In such an event, according to her, limitation for filing the appeal according to the decision rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be treated either as "Revision converted into appeal" or in the alternative the revision so pending before the Central Government be deemed to have been transferred to the Tribunal to be disposed of as an appeal filed before it in terms of sub-section (2) of Section 35P of the Act. 7. Alternatively, he submitted that there was no delay in filing the appeal. Elaborating on his arguments he submitted that there was no right of appeal at the relevant time and there was only a remedy of revision under Section 36 of the Act, as it then stood and that the right of the appeal in respect of such matters came to be conferred for the first time on 11-10-1982 when the new provisions of the Act came into force and the Tribunal was constituted. Consequently, the period of three months provided for filing the appeal under new Section 35B of the Act would run from the date when the appeal provisions came into force, i.e. from 11-10-1982. So computed, the instant appeal would be within time. To support his contention he drew our attention to the certain observations made in paragraph 8(h) and also to paragraph 8(i) of the decision rendered in the case of Collector of Central Excise v. Cres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s pending before the Government under erstwhile Section 36(2) of the Act into the appeal under new Section 36B of the Act or the question that the revision proceedings so pending shall be deemed to have been transferred to this Tribunal on the day of its constitution in terms of sub-section (2) of Section 35P of the Act does not arise in the instant case for the simple reason that according to the Department itself the Government returned the papers to the authorities concerned for filing the appeal before the Tribunal in terms of Section 35B of the Act, if so advised. On receipt of the papers the Collector concerned vide his order dated 4-12-1982 authorised the Assistant Collector to file the present appeal. (2) As regards the contention of the learned Departmental Representative that since the right of appeal was conferred for the first time on 11-10-1982 limitation of three months as provided under new Section 35B of the Act would run from the date when the appeal provisions came into force, i.e. from 11-10-1982. Shri Virmani, learned counsel for the respondent, submitted that this approach is wrong as would appear from the decision rendered by this Tribunal in the case of Phot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case law cited by the parties. 14. As regards the contention of the learned Departmental Representative that the present appeal should be treated as "Revision converted into appeal" or in the alternative the revision which was pending before the Central Government under erstwhile sub-section (2) of Section 36 of the Act be deemed to have been transferred to the Tribunal in terms of sub-section (2) of Section 35P of the Act to be disposed of as an appeal filed before it, we are of the considered opinion that in the facts and circumstances of the case this contention has no force. To begin with the revision proceedings relating to the impugned order dated 18-3-1982 which were pending with the Central Government under erstwhile Section 36(2) were never transferred to the Tribunal either expressly or by implication in terms of Section 35P of the Act. On the contrary it would appear from the affidavit of Shri Ashok Kumar Banerjee, Assistant Collector of Central Excise that the Ministry under their letter dated 16-10-1982 sent back the papers relating to the revision with the advice to consider filing of appeal before this Tribunal under Section 35B of the Act. The said averments made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such prayer it is doubtful as to whether Shri Sunder Rajan, learned Departmental Representative who appears in the Tribunal on behalf of the Collector strictly in accordance with his directions can raise the said contention on behalf of the Collector of Central Excise, Calcutta. That apart, for the reasons mentioned above we reject the said contention of the learned Departmental Representative. 15. As regards the other submission of the learned Departmental Representative that there was no delay in filing the appeal for, the right of appeal in respect of such matters came to be conferred for the first time on 11-10-1982 when the new provisions of the Act. relating to the appeals came into force and the Tribunal was constituted and consequently the period of three months provided for filing the appeal under sub-section 3 of Section 35B of the Act would run from the date when the appeal provisions came into force i.e. from 11-10-1982, it would suffice to say that such interpretation is not available in the presence of the provisions of Section 35B of the Act and particularly of the "Customs, Central Excise & Gold (Control) Removal of Difficulties Order, 1982". Provisions of sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following observations made in paragraph 8 of the decision rendered by Special Bench "C" in the case of Collector of Central Excise v. Crescent Dyes & Chemicals, supra support the contention of the learned Departmental Representative wherein it was observed in unequivocal terms that the period of limitation prescribed for such an appeal should be reckoned from the date when the right of appeal for the first time had been conferred. The relevant para of the said judgment may be extracted with advantage which runs thus - "8(h) Limitation is procedural and has retrospective applicability unless expressly stated to the contrary. There is no provision in the amendments made to the Central Excises and Salt Act restricting the period of limitation prescribed therein to only those cases/appeals that are to be instituted after the amendment had come into force The time lag between the enactment of the provisions in Section 35B(3) and the date when they were brought into force also leads to the conclusion, in one view, that the period of limitation prescribed therein is applicable to pending proceedings as well. Nor, unfortunately, is a provision analogous to Section 30 of the Limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod for filing such a suit was prescribed under the new Limitation Act, 1963, interpreted Section 30 of the new Limitation Act, 1963, and held that ex facie, Section 30 applies to a suit for which the period of limitation prescribed by this Act is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908. Now, if the Limitation Act, 1908 did not prescribe any period of limitation for an application under Section 4 of the Act, then it was an unlimited period and if the present Act prescribed any period of limitation for such application, then it will be a case where the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act and the application under Section 4 in that case would then be required to be made within a period of ninety days next after the commencement of the Limitation Act, 1963. 18. But here in the instant case we are having Paragraph 3 of the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982 which is a transitional provision and provides for a larger period of 6 months for filing the appeal from the date on which the order appealed against is communicated instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g after limitation under this provision had expired. It is not for us to say as to what should happen if limitation expired before the Tribunal was set up." (Emphasis supplied) 19. In the result we feel unable to agree with the observations made in the case of Collector of Central Excise v. Crescent Dyes & Chemicals, supra and hold that the limitation would run from the date of communication of the order as provided under Sub-Section (3) of Section 35B of the Act read with paragraph 3 of the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982 and not from the date i.e. to say from 11-10-1982 on which the right to appeal was conferred for the first time on the appellant-Collector of Central Excise and the new provisions came into force. 20. The other contention raised by the learned Departmental Representative that the appellant in the matter of appeal should have the same limitation of one year which was available in the case of exercise of review or revisionary powers under erstwhile Section 36(2) of the Act, has also in our considered opinion no force for the reasons given in the case of Collector of Central Excise v. Anil Starch Products Ltd., 1987 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and possible explanation from 23-10-1982 to 24-11-1982. Even it appears to us that no attempt was made to explain the delay. From the ('Chart of events') as extracted in Paragraph 2 (vii) above it is clear that the draft appeal was prepared on 26-11-1982 and the Assistant Collector concerned was asked to furnish relevant papers required for filing the appeal on 30-11-1982 and that thereafter order from the Collector for filing the appeal to the Tribunal was received on 4-12-1982. For the onwards delay, i.e., from 5-12-1982 to 17-12-1982 it is said in the ('Chart of events') that the paper book was got prepared and the appeal was submitted with the relevant papers to the Tribunal on 18-12-1982 (when in fact the appeal was received on 23-12-1982 in the Registry - a fact not disputed by the learned Departmental Representative at the time of hearing of the appeal). The time said to have been consumed for preparation of the paper book from 5-12-1982 to 17-12-1982 itself indicates that nobody was serious about the running of the period of limitation and everything was done in a casual and leisurely manner. Recently the Hon'ble Supreme Court in the case of Union of India v. Tata Yodog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said "authorisation" which is on record reads as follows - "COLLECTORATE OF CENTRAL EXCISE & CUSTOMS : WEST BENGAL : CALCUTTA CUSTOM HOUSE (ANNEXE) : 15/1, STRAND ROAD : CALCUTTA-700 001. I hereby authorise Assistant Collector (Tribunal & Review), Collectorate of Central Excise & Customs, West Bengal, Calcutta to act on my behalf in the matter of filing appeal/applications/cross objections/statement of references before the Customs, Excise & Gold (Control) Appellate Tribunal in terms of Sections 35B(2) and 35B(4), 35E(I), 35G(I) and 35G(2) of the Central Excises & Salt Act, 1944. Sd/- S. MUKHOPADHYAY COLLECTOR CENTRAL EXCISE & CUSTOMS WEST BENGAL: CALCUTTA C. No. V-GL(2) 60-CE/WB/Review/82/78590-91E Dated 14-12-1982 Copy forwarded to:- 1. East Regional Bench, Customs, Excise & Gold-(Control) Appellate Tribunal, Bamboo Villa, 7th Floor, 169, Acharja Jagdish Ch. Bose Road, Calcutta-14. 2. Special Bench of Customs, Excise and Gold (Control) Appellate Tribunal, 37, Nehru Place, New Delhi. Sd/- (J. MAJUMDER) Assistant Collector (Tribunal & Review) Central Excise and Customs, West Bengal, Calcutta. (Emphasis supplied*) 26. From a mere reading of the said authorisation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. cannot be said to be a direction to the Central Excise Officer by him to file appeal "in this behalf". It is significant that the words "in this behalf" appearing in sub-section (2) of Section 35B does not find a place in sub-section (2) of Section 129A of the Customs Act which also deals with the power of the Collector of Customs to direct the proper officer to appeal on his behalf to the Tribunal against an order passed by the Appellate Collector of Customs under the erstwhile Section 128 when it is found by him that such order was not legal or proper. For comparison the said sub-section (2) of Section 129A of the Customs Act may be reproduced as below - "(2) The Collector of Customs may, if he is of opinion that an order passed by the Appellate Collector of Customs under Sec. 128, as it stood immediately before the appointed day, or the Collector (Appeals) under Sec. 128A, is not legal or proper, direct the proper officer to appeal on his behalf to the Appellate Tribunal against such order." 28. Thus, from the inclusion of the words "in this behalf in Section 35B(2) of the Central Excises and Salt Act it is clear that under the Central Excises and Salt Act the direction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Syed Yusuf v. Syed Mohammed [A.I.R. 1967 S.C. 1318] referred to in para 17 of the proposed order, I am of the considered view that para 3 of the Removal of Difficulties Order (hereinafter referred to as the said Order) is not applicable to the instant case. The said Order, as the name implies should alleviate the difficulties caused by commencement of a new Act in place of an old one. Para 3 of the said Order extracted in sub-para (iv) of para 2 (factual backdrop) merely enlarges the period of appeal to six months from the date on which the order passed by the Central Board of Excise and Customs or the Appellate Collector of Central Excise under Section 35 of the Central Excise Act, or, passed by the Central Board of Excise and Custom or the Collector of Central Excise under Section 35A of the Central Excises Act (hereinafter referred to as the Act) as it stood immediately before the appointed date, from the ordinary period of three months laid down in Section 35B of the new provisions of appeals. It is apparent that the said Order did not go far enough to alleviate the hardship caused on account of prescription of the shorter period of limitation in the new provision (Section 35B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1908 to Hyderabad and the consequential change in law prescribing a shorter period of limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for the enforcement of the cause of action. We must, therefore, apply the normal rule that the law of limitation applicable to the suit is the law in force at the date of the institution of the suit." (Emphasis supplied) 33.04 In other words, from the above emphasised portion it is apparent conversely that if the shorter period prescribed by the new provisions confiscates the existing cause of action, the normal rule i.e. the law of limitation as is available on the date of institution of the appeal should not apply. From that point of view, it would be reasonable to reckon the limitation in such cases as the instant case, from the date of commencement of new provisions in Section 35B. The ratio of Tribunal's decision in Collector of Central Excise v. Crescent Dyes and Chemicals which is well reasoned is applicable in the instant case; otherwise the cause of action arising out of the order passed under the old Section 35 by the Appellate Collector gets confiscated. It would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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