Navilkal Tea Factory vs CEGAT

Venkataswami, J.—This writ petition under Article 226 of the Constitution of India is for the issue of a writ of certiorarified mandamus to

call for the records relating to the order of the first respondent passed in No. E/COD/520/88-D/Appeal No. E. 1086/88-D, dated 27-1-1989 and

to quash the same and for consequential direction to dispose of the appeal preferred by the petitioner on merits.

Brief facts leading to the filing of this writ petition are the following :

On 11-5-1986 officers of Central Excise, Coonoor Division have inspected the petitioner''s factory and found certain irregularities, as a result of

which, a notice was issued to show cause why a quantity of 12432 Kgs. of unaccounted tea should not be confiscated and why a differential duty

of Rs. 2,48,238.58 p. should not be demanded and penalty should not be imposed upon the petitioner. The petitioner replied to the show cause

notice, but the second respondent was not prepared to accept the reply sent by the petitioner and consequently confirmed the proposal in the

show cause notice. Apart from the confiscation and levy of differential duty, a sum of Rs. 50,000 was levied by way of penalty. Aggrieved by the

order of the second respondent, the petitioner preferred an appeal to the first respondent-Tribunal with a delay of 18 months. The reason given for

such a delay reads as follows :

The appellant submits that though the order was passed as early as October 1986, the appellant-firm could not present the appeal in time as

directed by the impugned order before the Tribunal because the partners of the company could not pay attention to the business due to certain

family problems and due to the sudden illness of P. Thomas who is the consultant of the assessee-firm. The appellant was under the bona fide

impression that the said consultant has taken the appeal before the Tribunal as per the directions. But on verification the appellant-firm came to

know only during third week of March 1988 that the appeal has not been sent to this Hon''ble Tribunal. Hence the appellant came to know of the

impugned order only during the third week of March, 1988 and therefore the appeal has been preferred now and have the appeal is in time as the

same has been preferred within three months from the date of knowledge.

It may be mentioned that pending appeal before the Tribunal, no stay was obtained and, therefore, the Revenue took steps to collect the duty as

well as the penalty. The petitioner seems to have filed a writ of mandamus to restrain the Department from collecting the duty as well as the penalty

pending disposal of the appeal. When that writ petition came up for admission, the learned Judge has dismissed the same directing the Tribunal to

dispose of the appeal on merits. Accordingly, the Tribunal took up the appeal and found that the delay of 18 months in filing the appeal was not

satisfactorily explained and on that ground dismissed the appeal. Aggrieved by that the present writ petition is filed.

Learned counsel for the petitioner submits that the petitioner has got a very good case on merit and that the Tribunal ought to have disposed of

the appeal on merits instead of dismissing the same on the ground of delay in filing the appeal.

Mr. Jayachandran, learned counsel appearing for the respondents submitted that Section 35B(3) of Central Excises and Salt Act stipulates a

period of three months for filing an appeal to the Tribunal and Section 35B(5) of the Act provides for condoning the delay in filing the appeal

provided the appellant satisfies the Tribunal with sufficient cause for not presenting the appeal within there months. It the Tribunal finds that there

was no sufficient cause for not presenting the appeal within the prescribed period that was also a disposal on merits u/s 35B(4) read with Section

35B(5) of the Act.

I am unable to accept the contention of the learned counsel for the petitioner that because there is a strong case on merits, the Tribunal should

have condoned the delay notwithstanding the fact that there was no sufficient cause shown by the appellant. The reason as extracted above for no

filing the appeal in time cannot be construed as sufficient cause for not filing the appeal in time. The reason, as extracted above given by the

appellant before the Tribunal for not filing the appeal in time appears to be his own negligence in not taking necessary steps which he could have or

should have taken. Therefore, it cannot be said that the Tribunal has committed an error in holding that no sufficient cause was shown for

condoning the delay. It cannot also be pointed out that the Tribunal has not disposed of the case on merits the petitioner has not made out a case

for entertaining the belated appeal and the Tribunal cannot ignore the provisions of the Act in particular Section 35B(3) and 35B(5).

In the result, this writ petition fails and it is dismissed. However, there will be no order as to costs.