Collector of Central Excise Vs. Smt. Shyam Kumari and ors. - Court Judgment

Excerpt:
1. collector of central excise, north up collectorate of customs, meerut, has filed an appeal being aggrieved from the order passed by the central board of excise & customs, new delhi. in column no. 3, the date of communication of the order has been mentioned as 25th may, 1982, whereas the appeal was received in the registry on 19th april, 1983. in terms of provision of sub-section (3) of section 35b of the central excises & salt act, 1944, the appeal has to be filed within three months from the date of the communication of the order. the appellant has filed an application for condonation of delay. notices of hearing were sent to the appellant as well as to the respondents.nobody has appeared cm behalf of the respondents. shri satish kumar, learned jdr, has appeared on behalf of the appellant, and he has reiterated the contentions made in the application for condonation of delay. he has pleaded that the appellant was prevented by sufficient cause in the late filing of the appeal, and the delay may be condoned.2. we have heard shri satish kumar, learned jdr, and have gone through the records. para no. 5 from the application for condonation of delay is reproduced below: (5) the procedure for filing appeal being new and communication of the same being quite late on account of administrative reasons the delay in filing of the present appeal, if any, is prayed to be condoned and appeal admitted in the interest of justice to the important issues involved.union of india v. tata yodogawa ltd. reported in 1988 (38) elt 739 sc : 1988 (19) ecr 569 (sc) : ecr c cus 1411 (sc) had held that delay due to inter-departmental correspondence is not a sufficient cause for condonation of delay.hon'ble supreme court in the case of ramlal and ors. v. rewa coalfields had held that after the expiry of limitation, the appellant has to explain each and every day's delay.hon'ble supreme court in the case of the state of west bengal v. the administrator howrah municipality and ors. had held that the mere fact that the appellant is government, a superior treatment should not be given. para no. 27 from the said judgment 27. 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 even after extending the benefit of the removal of difficulties order, the appellant got six months and the appeal was filed after the expiry of six months.3. keeping in view the decisions of the hon'ble supreme court, we are of the view that it is not a fit case where the tribunal should exercise its discretion in condoning the delay in terms of provisions of sub-section (5) of section 35b of the central excises & salt act, 1944. the application for condonation of delay is rejected. before we part with this, we would like to observe that in the present matter even otherwise the appeal is not maintainable. the collector of central excise cannot be treated as an aggrieved person for the filing of appeal before the tribunal in terms of provision of sub-section (2) of section 35b of the central excises & salt act, 1944. this tribunal had occasion to deal with similar situation in the case of collector of customs & central excise ahmedabad and ors. v. narendra p. unrao and ors. from the said judgment are 17. shri parekh contended that by this order, the collector of customs could prefer an appeal against the order passed by the board under section 128 as it stood before the appointed day within 6 months from the date of its communication, and therefore, the expression "aggrieved person" appearing in sub-section (1) of section 129a would take within its ambit, the collector of customs also. we put a question to shri parekh whether the collectors of customs are entitled for a communication of the order passed by the board under section 128 of the act as it stood immediately before the appointed day. shri parekh frankly conceded that no such communication was contemplated under the act as it stood immediately before the appointed day and when that was so, the contention of shri parekh that by reason of this clause the collectors of customs have a right to prefer an appeal under sub-section (1) of section 129a cannot be accepted. by removal of difficulties order the central government intends to enlarge the period of limitation in the matter of preferring an appeal against the orders passed by the appellate collectors and central board during the transitory period. this order cannot confer a substantial right of appeal either on the collector or on the assessee or other aggrieved person. we, therefore, reject the contention of shri parekh. 18. now, coming to sub-rule (3) of rule 6 of the appellate tribunal customs (appeals) rules, 1982 which provides for forms in which the appeal shall be preferred to the appellate tribunal and which reads: where an appeal under sub-section (1) of section 129a or a memorandum of cross-objection under sub-section (4) of that section is made by any person other than the collector of customs, the grounds of appeal, the grounds of cross-objections and the forms of verification as contained in form nos. ca-3 and ca-4 as the case may be, respectively shall be signed by the person specified in sub-rule (2) of rule 3. the contention of shri parekh was that if collector was not to be included in the expression "any person aggrieved" appearing in sub-section (1) of section 129a there is no need to make provisions similar to those found in sub-rule 3 of rule 6. we questioned shri parekh as to whether the rules provide forms for preferring appeal or memorandum of cross-objection by the collector. shri parekh conceded that no such form has been prescribed. now if the collector is to be considered as an "aggrieved person" for the purpose of sub-section (1) of section 129a, rules would have prescribed the forms in which the collector should file an appeal to the tribunal. the absence of a prescribed form is significant. it may be stated here that under sub-section (3) of section 129a the period of limitation even in respect of appeals to be filed at the instance of the collector against the order of the appellate collector and collector (appeals). apart from the above, if right of appeal is not conferred on the collector under the act, such a power cannot be conferred by subordinate legislation, viz. by rules. now, there has been no substantial change in the law in the matter of appeal after the appointed day. the only power conferred on 'the revenue' to prefer an appeal is the power conferred on the collector of customs under sub-section (2) of section 129a to challenge the orders passed by the appellate collector and collector (appeals). if the intention of the parliament was that there should be right of appeal to 'the revenue' against the order passed by the central board of excise & customs, a specific provision would have been enacted similar to the provisions of sub-section (2) conferring a right of appeal either on the collector or the central government. the same has not been done. we have pointed out even under the act, as it stood before the appointed day, the board was constituted as a final authority in the matter of appeal. no doubt, the central government had authority to revise the order of the board. if the parliament in its wisdom had taken away the power of the central government to scrutinise the order of the central board of excise & customs, that remedy cannot now be provided by extending the scope of the provisions of section 129a." 19. the customs act is a fiscal statute. the executive officers of the customs department perform dual functions. they perform both administrative or executive and quasi-judicial functions. since the power of adjudication is conferred on the executive officers, the necessity to provide an appeal at the instance of 'the revenue' was probably not considered necessary. but then prior to the appointed day, revisional power has been conferred on superior authorities. even after the appointed day, as pointed out earlier, the board as well as the collector could examine the proceedings of their subordinates. having regard to that scheme of the act, both prior to and after the appointed day, we are of the considered view that the expression "aggrieved person", appearing in sub-section (1) of section 129a does not take within the ambit 'the revenue". therefore, we hold that the present appeals are not maintainable. 21. there is a clear distinction between judicial authority and executive authority though the two powers vest in the same person. once the judicial function has been exercised in qua judicial matters, that authority becomes functus officio, whether that order is right or wrong, is not, therefore, the concern of that very authority. if the appellate authority has given its decision, then it is not for the judicial authority (collector) to question the correctness of the order of the appellate authority but only to execute or carry out the order of the appellate authority. in the garb of executive powers the person who acted as an adjudicating authority, cannot examine or scrutinise the order of the appellate authority just because the order of the appellate authority is not in conformity with its view. such a procedure if allowed will make a mockery of justice. we refuse to lend ourselves to an interpretation where that would be the result.in view of the above discussion, we are of the view that the appeal filed by the appellant is also not maintainable.4. since we have held that the appeal is not maintainable and have rejected the application for condonation of delay, the appeal is also dismissed. we are not going into the merits of the same.

Judgment:
1. Collector of Central Excise, North UP Collectorate of Customs, Meerut, has filed an appeal being aggrieved from the order passed by the Central Board of Excise & Customs, New Delhi. In column No. 3, the date of communication of the order has been mentioned as 25th May, 1982, whereas the appeal was received in the Registry on 19th April, 1983. In terms of provision of Sub-section (3) of Section 35B of the Central Excises & Salt Act, 1944, the appeal has to be filed within three months from the date of the communication of the order. The appellant has filed an application for condonation of delay. Notices of hearing were sent to the appellant as well as to the respondents.

Nobody has appeared cm behalf of the respondents. Shri Satish Kumar, learned JDR, has appeared on behalf of the appellant, and he has reiterated the contentions made in the application for condonation of delay. He has pleaded that the appellant was prevented by sufficient cause in the late filing of the appeal, and the delay may be condoned.

2. We have heard Shri Satish Kumar, learned JDR, and have gone through the records. Para No. 5 from the application for condonation of delay is reproduced below: (5) The procedure for filing appeal being new and communication of the same being quite late on account of administrative reasons the delay in filing of the present appeal, if any, is prayed to be condoned and appeal admitted in the interest of justice to the important issues involved.Union of India v. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 SC : 1988 (19) ECR 569 (SC) : ECR C Cus 1411 (SC) had held that delay due to inter-departmental correspondence is not a sufficient cause for condonation of delay.

Hon'ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields had held that after the expiry of limitation, the appellant has to explain each and every day's delay.

Hon'ble Supreme Court in the case of the State of West Bengal v. The Administrator Howrah Municipality and Ors. had held that the mere fact that the appellant is government, a superior treatment should not be given. Para No. 27 from the said judgment 27. 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 Even after extending the benefit of the Removal of Difficulties Order, the appellant got six months and the appeal was filed after the expiry of six months.

3. Keeping in view the decisions of the Hon'ble Supreme Court, we are of the view that it is not a fit case where the Tribunal should exercise its discretion in condoning the delay in terms of provisions of Sub-section (5) of Section 35B of the Central Excises & Salt Act, 1944. The application for condonation of delay is rejected. Before we part with this, we would like to observe that in the present matter even otherwise the appeal is not maintainable. The Collector of Central Excise cannot be treated as an aggrieved person for the filing of appeal before the Tribunal in terms of provision of Sub-section (2) of Section 35B of the Central Excises & Salt Act, 1944. This Tribunal had occasion to deal with similar situation in the case of Collector of Customs & Central Excise Ahmedabad and Ors. v. Narendra P. Unrao and Ors. from the said judgment are 17. Shri Parekh contended that by this order, the Collector of Customs could prefer an appeal against the order passed by the Board Under Section 128 as it stood before the appointed day within 6 months from the date of its communication, and therefore, the expression "aggrieved person" appearing in Sub-section (1) of Section 129A would take within its ambit, the Collector of Customs also. We put a question to Shri Parekh whether the Collectors of Customs are entitled for a communication of the order passed by the Board Under Section 128 of the Act as it stood immediately before the appointed day. Shri Parekh frankly conceded that no such communication was contemplated under the Act as it stood immediately before the appointed day and when that was so, the contention of Shri Parekh that by reason of this clause the Collectors of Customs have a right to prefer an appeal under Sub-section (1) of Section 129A cannot be accepted. By removal of Difficulties Order the Central Government intends to enlarge the period of limitation in the matter of preferring an appeal against the orders passed by the Appellate Collectors and Central Board during the transitory period.

This order cannot confer a substantial right of appeal either on the Collector or on the assessee or other aggrieved person. We, therefore, reject the contention of Shri Parekh.

18. Now, coming to Sub-rule (3) of Rule 6 of the Appellate Tribunal Customs (Appeals) Rules, 1982 which provides for forms in which the appeal shall be preferred to the Appellate Tribunal and which reads: Where an appeal under Sub-section (1) of Section 129A or a memorandum of cross-objection under Sub-section (4) of that section is made by any person other than the Collector of Customs, the grounds of appeal, the grounds of cross-objections and the forms of verification as contained in Form Nos. CA-3 and CA-4 as the case may be, respectively shall be signed by the person specified in Sub-rule (2) of Rule 3.

The contention of Shri Parekh was that if Collector was not to be included in the expression "any person aggrieved" appearing in Sub-section (1) of Section 129A there is no need to make provisions similar to those found in Sub-rule 3 of Rule 6. We questioned Shri Parekh as to whether the Rules provide forms for preferring appeal or memorandum of cross-objection by the Collector. Shri Parekh conceded that no such form has been prescribed. Now if the Collector is to be considered as an "aggrieved person" for the purpose of Sub-section (1) of Section 129A, Rules would have prescribed the forms in which the Collector should file an appeal to the Tribunal.

The absence of a prescribed form is significant. It may be stated here that under Sub-section (3) of Section 129A the period of limitation even in respect of appeals to be filed at the instance of the Collector against the order of the Appellate Collector and Collector (Appeals). Apart from the above, if right of appeal is not conferred on the Collector under the Act, such a power cannot be conferred by subordinate legislation, viz. by Rules. Now, there has been no substantial change in the law in the matter of appeal after the appointed day. The only power conferred on 'the Revenue' to prefer an appeal is the power conferred on the Collector of Customs under Sub-section (2) of Section 129A to challenge the orders passed by the Appellate Collector and Collector (Appeals). If the intention of the Parliament was that there should be right of appeal to 'the Revenue' against the order passed by the Central Board of Excise & Customs, a specific provision would have been enacted similar to the provisions of Sub-section (2) conferring a right of appeal either on the Collector or the Central Government. The same has not been done.

We have pointed out even under the Act, as it stood before the appointed day, the Board was constituted as a final authority in the matter of appeal. No doubt, the Central Government had authority to revise the order of the Board. If the Parliament in its wisdom had taken away the power of the Central Government to scrutinise the order of the Central Board of Excise & Customs, that remedy cannot now be provided by extending the scope of the provisions of Section 129A." 19. The Customs Act is a fiscal statute. The executive officers of the Customs Department perform dual functions. They perform both administrative or executive and quasi-judicial functions. Since the power of adjudication is conferred on the executive officers, the necessity to provide an appeal at the instance of 'the Revenue' was probably not considered necessary. But then prior to the appointed day, revisional power has been conferred on superior authorities.

Even after the appointed day, as pointed out earlier, the Board as well as the Collector could examine the proceedings of their subordinates. Having regard to that Scheme of the Act, both prior to and after the appointed day, we are of the considered view that the expression "aggrieved person", appearing in Sub-section (1) of Section 129A does not take within the ambit 'the Revenue".

Therefore, we hold that the present appeals are not maintainable.

21. There is a clear distinction between judicial authority and executive authority though the two powers vest in the same person.

Once the judicial function has been exercised in qua judicial matters, that authority becomes functus officio, whether that order is right or wrong, is not, therefore, the concern of that very authority. If the appellate authority has given its decision, then it is not for the judicial authority (Collector) to question the correctness of the order of the appellate authority but only to execute or carry out the order of the appellate authority. In the garb of executive powers the person who acted as an adjudicating authority, cannot examine or scrutinise the order of the appellate authority just because the order of the appellate authority is not in conformity with its view. Such a procedure if allowed will make a mockery of justice. We refuse to lend ourselves to an interpretation where that would be the result.

In view of the above discussion, we are of the view that the appeal filed by the appellant is also not maintainable.

4. Since we have held that the appeal is not maintainable and have rejected the application for condonation of delay, the appeal is also dismissed. We are not going into the merits of the same.