1. The Collector of Central Excise, Belgaum, has filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals). In column No. 3 the date of communication has been mentioned as 24th June, 1985, The said appeal was received in the Registry on the 5th day of November, 1985. In terms of provision of Sub-section (3) of Section 35B of the Central Excises and Salt Act, 1944, an appeal has to be filed within three months. This means the last date for the filing of the appeal was 25th September, 1985. The appeal was received on 5th November, 1985, thus, there is a delay of one month and eleven days.
The notice of hearing dated 12th December, 1990 was sent per registered AD post and the matter was listed for hearing on 28th January, 1991.
Shri M.S. Arora, learned JDR, has appeared on behalf of the appellant on the last day of hearing and on Shri Arora's request the matter was adjourned for today, i.e. the 25th day of February, 1991 to enable the appellant to file an application for condonation of delay. Today Shri S.K. Roy, learned SDR, has appeared. He stated that a telex was sent to the Collector on 28th January, 1991 and till now, no reply has been received and no application for condonation of delay has been filed.
2. Shri T. Rajeswara Sastry, learned Consultant, who has appeared on behalf of the respondent, stated that on the last date of hearing he had come all the way from Bangalore and it was made clear by the Bench that no further adjournment will be granted in any case. He opposes the grant of adjournment and stated that in case adjournment is granted, the respondents shall be put to great inconvenience and unnecessary expenditure.
3. We have heard both the sides on the plea of the adjournment. Hon'ble Supreme Court in the case of Union of India and Ors. v. Visveswaraya Iron & Steel Ltd. reported in 1987 (32) ELT 458 (SC) had refused adjournment for the filing of supplementary affidavit explaining delay and the application for condonation of delay as well as SLP were rejected. Para No. 1 from the said judgment is reproduced below: "1. This Special Leave Petition has been filed beyond the period prescribed by the Rules for filing a special leave petition. The petitioner has filed an application for condonation of delay in filing the special leave petition. There are no grounds made out in the application for condonation of delay and the only material set out in the application is the list of dates starting from the date of receipt of the certified copy of the judgment upto the date of filing of the Special Leave Petition. It appears from the list of dates that the certified copy was received by the Collector of Central Excise on 22nd July, 1984 (wrongly mentioned as 32nd July, 1984) and it was after a period of two months, on the 29th September, 1984 that the certified copy was despatched by the Collector of Central Excise to the Ministry of Finance. The Ministry of Finance referred the case to the Central Agency Section on 15th October, 1984. But the Central Agency Section sent back the case to the Ministry of Finance with the remark that the same should be sent to the Ministry of Law. This process of realisation that the case should have been referred to the Ministry of Law and not to the Ministry of Finance took about 24 days and thereafter, again, some time was taken up at the subsequent stages. The learned Additional Solicitor General gave his opinion on 18th December, 1984 that the special leave petition should be filed. But even thereafter, there was a delay of more than a month and a half and on 7th January, 1985, a special leave petition was filed without offering any explanation for this delay at three stages. The Learned Additional Solicitor General requested use to give him an opportunity to file a supplemental affidavit explaining the delay at the three stages. But we do not see why any further time should be granted to the petitioners to file a supplemental affidavit. The application for condonation of delay was made on 7th January, 1985 and we are now in November, 1986 and the petitioners thus had a period of about one year and nine months to rectify the defect by filing a supplemental affidavit but the petitioners have failed to do so. We do not under the circumstances find any justification for condoning the delay and the application is therefore rejected and so is the Special Leave Petition." To meet the ends of justice on the last date of hearing we had granted adjournment. Today the position is the same. There is negligence on the part of the appellant. The appellant has not taken care even in filing application for condonation of delay. Accordingly, we are of the view that the facts of the case do not justify the grant of adjournment. The prayer of the applicant for grant of adjournment is rejected.
4. Now, we proceed to take up the appeal. We have also pointed out that there is a delay of one month and 11 days. There is no application for condonation of delay. In the absence of application for condonation of delay, the discretion for condoning the delay in terms of provisions of Sub-section (5) of Section 35B of the Central Excises & Salt Act, 1944 cannot toe exercised. The appeal is dismissed being hit by limitation and we are not going into the merits of the same.