1. This order will dispose of the application by appellant - Collector of Central Excise, Bombay for condoning delay in presenting appeal to the Tribunal.
2. According to the particulars given in the Memo of appeal, the impugned order was communicated to the appellant on 25-3-1986. The appeal should have been filed to the Tribunal by 24-6-1986. The Memo of appeal dated 25-3-1987 was received in the Tribunal on 30-3-1987. The appeal is thus barred by limitation stipulated under Sub-Section (3) of Section 35B of Central. Excises & Salt Act, 1944 by 9 months and 6 days. Excluding the postal delay of 5 days between 25-3-1987 to 30-3-1987, it is barred by limitation by 9 months.
3. In the application for condonation of delay, which is supported by an affidavit sworn by Shri V.R. Gangurde, Deputy Collector of Central Excise, Bombay-Ill, the officer authorised by the Collector to present appeal, it is submitted that the decision in the impugned order followed the ratio of CEGAT decision in Bakelite Hylam, Hyderabad. It was decided on 23-6-1986 not to file appeal against the Order-in-Appeal but from subsequent references received by Bombay-III Collectorate from other Collectorates, it appears different directions were being followed as to classification of laminated sheets in different Collectorates. This necessitated a meticulous study of the issue with reference to subject order-in-appeal and detailed information from Divisional Assistant Collectors of the Collectorate was called for. On 18-9-1986 factual decision with regard to classification of the product in respect of jurisdictions was called for. During the course of fresh examination of the issue, Deputy Collector (Technical)' of the Collectorate visited the respondents unit situated at Kolshet Road, Thane on 14-10-1986 and did physical verification. He found that there were sufficient grounds on the merits of the classification justifying filing an appeal against the impugned order. It was also found that substantial amount was involved in the consequential relief in the order-in-appeal. Besides, the order would have recurring effect causing further loss of revenue as the respondent was bent upon taking benefit of the order-in-appeal in respect of future clearances. It is also urged that the order-in-appeal would have far reaching remifications throughout the country adversely affecting the Department's interests.
The application submits that delay is not wilful or mala fide and should be condoned.
4. At the hearing of the application, Smt. Chander reiterated the grounds urged in the Application for Condonation of Delay and relied on a very recent decision of Supreme Court parties Collector, Land Acquisition Anantnag and Anr v. Mst. Katiji and Ors. [1987 (28) ELT 185 (SC)].
5. Opposing Smt. Chander's contention, Shri K. Natarajan, Executive Vice-President of the respondent, submitted that the delay was not at all properly explained. He referred to a decision of the Tribunal in Bakelite Hylam v. Collector of Central Excise, Hyderabad reported in 1985 (22) ELT 879 and submitted that in view of this decision, it was not at all necessary for the appellant - Collector to have gone for the excessive enquiry which he claims to have made because there was a decision on the point and the decision would show that all necessary enquiries on the point had been made, if not by his Collectorate, by other Collectorates. It was also submitted that it was not understandable why in respect of respondents case, issue relating to other Collectorates would be tagged. If in other Collectorates unnecessary decision adverse to Revenue, it was open to Revenue to come up in an appeal against that decision and that could not be made an excuse for praying for condonation of delay in the present appeal.
6. We have carefully considered the submissions made by both the parties. It is true that Hon'ble Supreme Court in Collector, Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors. [1987 (28) ELT 185 (SC)] observed that reference to Section 5 of Limitation Act, 1963 which is analogous to Sub-section (5) of Section 35B of Central Excises and Salt Act, 1944 that the expression sufficient cause employed by the Legislature is adequately elastic to apply the' law in a meaningful manner to subserve the ends of justice - that being the life purpose for the existence of the institution of courts. They also added that it is common knowledge that this Court (Supreme Court) has been making a justifiable liberal approach to matters instituted in the Court. They added but the message does not appear to have percolated down to other Courts in the hierarchy. Further observing that such a liberal approach is adopted on the six principles laid down and reproduced below :- 1) "Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injstice being done because of a non-deliberate delay.
5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6) It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 7. Besides the Supreme Court decision (supra) on which Smt. Chander has placed reliance, there are other decisions of the Supreme Court on Section 5 of Limitation Act, 1908 - an analogous provision to Sub-section (3) of Section 35B of Central Excises & Salt Act,'1944.
Dealing with the provision in Ramlal and Ors. v. Rewa Coalfields Ltd. (AIR "(7) In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly 'disturbed."In the State of West Bengal v. Administrator, Howrah Municipality and Ors. (AIR 1972 SC 749), the Hon'ble Supreme Court has held as under - "Mr. D. Mukherji, learned counsel for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same unless the statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of Section 5 of the Limitation Act should also be available to the State." 9. Smt. Chander has argued that between the earlier decisions of the Supreme Court, the latest decision should be preferred to the earlier decisions and following the same, delay of 9 months and 6 days in filing the present appeal should be condoned. The latest decision of the Supreme Court in Collector Land Acquisition Anantnag's case does not refer to the earlier decisions. It does not appear to us that this decision has the effect of over-ruling the earlier decisions. On us, ail the above decisions of the Supreme Court are equally binding and we will take a harmonious view treating all of them as binding on us.
10. From the Supreme Court decision relied on by Smt. Chander, we observe that the order of the Supreme Court after laying down general propositions already reproduced above, held as under : "Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay." Thus it would appear that even in spite of general observations, whether or not sufficient cause explaining the delay exists or not has to be examined. We cannot also overlook the fact that in the decision, there was only 4 days delay involved whereas in the present appeal, the delay is more than 9 months. Thus delay is attempted to be explained on the ground that enquiry had to be made from the field and at various levels. We also observe that on 23-6-1986, the appellants had taken decision not to file an appeal but felt the necessity of re-examining the matter after references were received from other Collectorates. We do not understand why this Collectorate should be interested in cases in other Collectorates. If in other Collectorates, a similar decision has been taken, nothing prevents these Collectorates from coming up in appeal to the Tribunal. Besides, we also fail to appreciate why a detailed enquiry as claimed was considered necessary. Even if it was necessary, nothing prevented the appellant from filing an appeal to the Tribunal in time or at the earliest and continuing to hold enquiry. The result of that enquiry, if considered necessary, could be brought on record of the Tribunal in accordance with law. Besides, no particulars about these 9 months have been given. From the application, it appears that after reference for necessary reports had been made on 18-9-1986, the Deputy Collector (Technical) visited the respondents unit on 14-10-1986. The appellant very well knew that even on this date, the appeal was barred by limitation by nearly 4 months and yet the appellant took 5 more months to file appeal to the Tribunal. We do not think that we would be justified in exercising our discretion in condoning this inordinate delay of more than 9 months which is not explained much less satisfactorily by showing sufficient cause for the same.
11. In the application, it has also been urged that considerable amount is involved and the decision would have adverse affect. The particulars of the amount involved have not been given though for this application it does not appear relevant to us. As for the decision having wider ramifications, we have not been able to appreciate this argument because even according to the Collector, the decision is based on the ratio of Tribunal's decision in Bakelite Hylam's case. The plea as to ramification would equally apply to the Tribunal decision which could be and must have been challenged by Revenue before Supreme Court. To us, however, this consideration does not appear relevant for condoning the inordinate delay.
12. We. find that the applicant has failed to make out sufficient cause justifying condonation of delay of the order of 9 months. We reject the application for condonation of delay. As a consequence, the appeal No.1057/87 in respect of which the application is made, stands dismissed as barred by limitation.