Uniworth Textiles Ltd. Through Its General Manager Vs. Commissioner of Central Excise and Customs and Customs, Excise and Service Tax Appellate Tribunal, West Zone Bench - Court Judgment

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excise - exemption - commissioner ordered appellant to pay additional excise duty - appellant applied for exemption - commissioner refused - appeal against such order - application for condonation of delay also filed - tribunal declined to condone delay and application rejected - appellant filed writ petition which was dismissed by single judge - hence, present appeal - held, no intentional delay on part of appellant - no reason to hold that delay not to be condoned and opportunity not to be given to petitioner - appeal allowed - impugned order passed by single judge and tribunal quashed - section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] admission to professional colleges - technical courses - publication of brochure on basis of which candidates seek admission to various institution keeping in mind their merit and preference of colleges held, for ensuring adherence to proper appreciation of an academic course, it is essential that the method of admission is just, fair and transparent. the first step in this direction would be publication of a brochure on the basis of which the applicants are supposed to aspire for admission to various institution keeping in mind their merit and preference of college. brochure, firstly has to be in conformity with law and the statutory scheme notified by the competent authority. it is a complete and composite document as it deals with the scheme for conducting their entrance examinations, declaration of results, general instructions and method of admission, etc. this brochure is binding on the applicants as well as the authorities. this brochure or admission notification issued by the state or other competent authority cannot be altered at a subsequent stage particularly once the process of admission has begun. there is hardly any exception to this accepted rule of law. section 10: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre,jj] admission to professional colleges - technical courses - approval to additional seats or to start new course - cut off dates held, the settled principle of law is that merit of the applicant is the primary criteria which would determine his rank as well as the college where he would be entitled to admission. this rule should not be frustrated as it will tantamount to entirely upsetting the object of admissions based on merit oriented method and would cast cloud on the fairness and transparency of the method of admission. one of the ways in which merit can be defeated is allowing increase in the intake strength or commencement if new colleges beyond cut-off date and admissions beyond the last date specified in the notification/calendar issued by the concerned authorities. this can be illustrated by giving an example. college a which is running a professional course like engineering or mba etc. has an intake capacity of 60 seats which has duly been notified in the information brochure. however, after the cut-off date, approval is granted by the aicte and thereafter, the process is taken up by the state and the intake capacity of the college is increased by 30 more seats. these seats would obviously, not be notified in the information brochure and the candidate who are meritorious and for whom college a; be the college of reference could not get seats or give preference as the seats were limited. none had the proper knowledge about the increase in intake of seats though at a much subsequent stage and may be even after the last date of admission is over either by themselves or under the order of the court even it is put on the internet or given in the newspaper, the candidates of higher rank or meritorious candidates would not be able to avail of that benefit because they have already submitted the testimonial, have paid their fees and the courses have commenced. in that situation, for variety of reasons, they may not be able to take admission in the institution of their higher preference while the candidates of much lower merit will be admitted to that course. besides defeating the merit, it has been commonly noticed that the late admissions made by the colleges directly effect notified candidates who have questioned it more than often as their admission process is not so just, fair and transparent which has given rise to the litigation. it is also a kind of back door entry method. another serious consequence that result from such admissions is shortening of the academic courses in an undesirable manner. it is expected of other candidate selected to a professional course that he or she would complete the course in its entirety and not by missing more than a month or so in joining the said course. this results in lowering the excellence of education as well as harms the academic standard of professional education. admission to professional colleges: [swatanter kumar, c.j., a.p. deshpande & smt. nishita mhatre, jj] technical courses - held, in process of admission to professional colleges relating to technical courses, primarily three institutional bodies are involved. (i) all india technical council for technical education, (ii) state of maharashtra through director of technical education and (iii) university to which such institution is affiliated the role of all these institutions in distinct and different but for a common object. primary of the rule of all india council for technical education (aicte) is now well settled but that certainly does not mean that role of the state government and for that matter the university is without any purpose or of no importance. the council is the authority constituted under the central act with the responsibility of maintaining education standards and judging upon the infra-structure and facilities available for imparting such professional education. its opinion is of utmost importance and shall take precedence over views of the state as well as that of the university. the concerned department of the state and the affiliating university has a role to pay but it is limited in its application. they cannot lay down any guidelines or policies which would be in conflict with the central statute or the students laid down a by the central body. state can frame its policy for admission to such professional courses but such policy again has to be in conformity with the directives issued by the central body. while the state grants its approval and university its affiliation for increased intake of seats or commencement for a new course/college, its directions should not offend and be repugnant to what has been laid down in the condition of approval granted by the central authority or council. what is most important is that all these authorities have to work ad idem as they all have a common object to achieve i.e. of proper imparting of education an ensuring maintenance of proper standards of education, examination and ensuring proper infrastructure for betterment of educational system. only if all these authorities work in a co-ordinated manner and with co-operation they would be able to achieve the very object for which all these entities exist admission to professional courses: [swatanter kumar, c.j.,a.p. deshpande & smt. nishita mhatre, jj] admission schedule - interference by courts held, all the expert bodies viz. aicte as well as directorate of education in consultation with the departments of the state regulating the process of admission and maintenance of standards of education had notified a legal binding document specifying dates and schedule for various matters in relation to admission of students and commencement of courses. there has to be so compelling circumstances and grounds before the court to interfere with the prescribed schedule. it is neither so arbitrary nor so perverse, keeping in view the essential features relating to imparting education to professional courses that it should invite judicial chastisement to the extent of laying down entirely new schedule. merely because there has been some delay on the part of either of these authorities to timely grant of either of these authorities to timely grant or decline approval and permission to commence a course per se would not be sufficient ground for disturbing the notified schedule and timely commencement of courses. - (4) on receipt of notice an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forth-five days of the receipt of the notice, a memorandum of crossobjections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the appellate tribunal as if it were an appeal presented within the time specified in sub-section (3) (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. however, if the commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. in other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. 6. the submission is, therefore, that considering the scheme and purpose of the act and specially provisions of section 35, which would be extended to other provisions of appeal like section 35b in question. on the contrary as recorded, clause (5) of section 35b provides power to the appellate tribunal to admit an appeal even after expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting within that period.anoop v. mohta, j.1. heard finally by consent of the parties.2. this is a letters patent appeal against order dated 12.06.2007 whereby, the order on petitioner's application for condonation of delay as was rejected by the customs, excise and service tax appellate tribunal, mumbai, is maintained.3. the appellant, who has filed the appeal against the impugned order dated 29.11.2005 passed by the learned commissioner (appeals), customs & central excise, nagpur to the extent that it has been held that the appellant is liable to pay additional excise duty (goods of special importance) as there was no exemption available to the respondent from payment of the said aed. the appeal was filed under section 35(b) of the central excise act, 1944 (for short 'act'). the relevant clauses are as under:35b appeals to the appellate 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 [commissioner of central excise}, or, as the case may be, the other party preferring the appeal.(4) on receipt of notice an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forth-five days of the receipt of the notice, a memorandum of crossobjections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the appellate tribunal as if it were an appeal presented within the time specified in sub-section (3)(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.4. as there was delay of 65 days, an application for condonation of delay was also filed. the tribunal, after considering the averments made, declined to condone the delay and as the application was rejected the appellant had preferred writ petition, which was also dismissed by the learned single judge.5. the learned counsel appearing for the respondents basically supported the order and also relied on the judgment of the hon'ble apex court, in singh enterprises v. commissioner of c. ex. jamshedpur : 2008(221)elt163(sc) , where the delay of 20 months was not condoned and it is observed as under:8. the commissioner of central excise (appeals) as also the tribunal being creatures of statue are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. the period upto which the prayer for condonation can be accepted is statutorily provided. it was submitted that the logic of section 5 of the indian limitation act, 1963 (in short the 'limitation act') can be availed for condonation of delay. the first proviso to section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. however, if the commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. in other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. the proviso to sub section (1) of section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. the language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay upto 30 days after the expirty of 60 days which is the normal period for preferring appeal. therefore, there is complete exclusion of section 5 of the limitation act. the commissioner and the high court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.6. the submission is, therefore, that considering the scheme and purpose of the act and specially provisions of section 35, which would be extended to other provisions of appeal like section 35b in question. we are not inclined to accept this submission for the simple reason that when the legislature has clear intention to give strict meaning or particular meaning to a particular provision as provided in section 35, it cannot extended to section 35g which has no such clause or provision. on the contrary as recorded, clause (5) of section 35b provides power to the appellate tribunal to admit an appeal even after expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting within that period. therefore, the facet of 'sufficient cause' of the limitation act applies. there is no such bar. the present section nowhere provides any such strict provision as provided in section 35 of the act. it is clear interpretation of that section, which cannot be extended to section 35b of the act.7. so far as merit of the matter is concerned, the fact remains that the petitioner loses his right to contest the appeal and his case as the application for condonation of delay itself was dismissed as there was 65 days delay.8. we are of the view that in the interest of justice and even otherwise it is desirable that the appellant/petitioner be given full opportunity to contest statutory appeal, which was dismissed on the ground of delay. the fact as recorded that on 21.12.2005 mr. rajesh kalla, who was working as manager and dealing with all the excise, customs cases of the company, had left the organisation. the new officer mr. tahaliyani was appointed. the handing over process took some time. the case papers, as observed, got mixed up with the other case papers. it is not abnormal that because of the change of officers, the new officer takes some time and takes decisions only after going through the record and especially after having knowledge of the records. in this case also, after mr. tahaliyani found the case papers including the impugned order and, thereafter, he prepared the appeal and filed the same. there was no intentional delay. even otherwise, considering the fact that there is delay of 65 days and as case is made out, we see there is no reason that the said delay should not be condoned and opportunity should not be given to the petitioner.9. in view of this, the present letters patent appeal is allowed. the impugned order passed by the learned single judge is quashed and set aside including the order passed by the tribunal. the delay is condoned. the tribunal to decide the appeal on merits accordingly.no order as to costs.