Standard Electric Appliance vs Government of India and Others

Nainar Sundaram, J.—The petitioner had a grievance over the order of the third respondent, dated 18th March 1978, with regard to his

decline to consider the request of the petitioner for eligibility to have their goods assessed on the petitioner on 3rd August 1978. As per Section 35

of the Central Excise and Salt Act 1944 (Act 1 of 1944), hereinafter referred to as the Act prior to its substitution in 1980 ,an appeal from the

above order should preferred within three months form the date of the order. It is not dispute that the date of order is to receive a wider

connotation so as to say that the appeal could be preferred from the date of the service of the order. But there was no provision for condonation of

delay earlier in contrast to such a provision introduced by the amendment in 1980. The petitioner sent the appeal as against the order of the third

respondent to the second respondent, by post and it was received by the second respondent on November 1978 obviously out of time. The

second respondent by his order dated 29th December 1978, dismissed the Appeal as time barred. The petitioner took up the matter by way of

revision to the first respondent, and the first respondent upheld the order of the second respondent and dismissed the revision. The orders of

respondents 1 and 2 are being put in issue in this writ petition.

Mr. K. Jayachandaran, learned counsel for the petitioner, would first contented that the petitioner did send the appeal before the expiry of the

prescribed period by post, and the date of posting should be counted as the date of preferring the appeal, and if so done, there is no question of

bar of limitation. In support of this proposition, he relies on a pronouncement of a Bench of the High Court of Gujarat in Narandas Vallanharm

Parmar v. Union of India 1978 ELT 695 .In answer Mr. T. Somasundaram, learned Additional central Government Standing Counsel appearing

for the respondent, would submit that there is no provision either in the Act or in the Rules framed thereunder, which contemplates the preferring of

an appeal of the present nature by post, and further neither the third respondent, the original authority, not the second respondent, the Appellate

authority, indicated that the appeal could be entertained by post and in the said circumstances, the post office could not be treated as the agent of

the appellate authority, so as to say that the date of posting the appeal papers must be deemed to be the date of preferring the appeal. Learned

Additional Central Government Standing Counsel wants to distinguish the pronouncement of the Bench of the Gujarat High Court in Narandas

Vallabharam Parmar v. Union of India. 1978 ELT 695 By pointing out that in that case the original authority intimated the party that if he was

aggrieved by the original decision, he should prefer an appeal to the Appellate authority c/o a Post Box within three months and in that context, it

has opined that when the Appeal was invited by post, the post office being the agent of the authorities, the Appeal could be held to have been

preferred within time form the date of posting. Learned Additional Central Government Standing Counsel also draws by attention to a

pronouncement of a single Judge of the High court of Calcutta in Titaghur Paper Mills Co. Ltd. v. Union of India, 1978 ELT 695 was distinguished

by pointing out the above feature and where the learned single Judge of the High Court of Calcutta found in the case dealt with by him that the

parties did not place or prove that the authorities had invited appeals by post or by their representation held that the postal authorities were

constituted as their agents.

There is no specific provision in the Act or in the rules framed under the Act, which lay down that appeals of the present nature could be

entertained by post so that it could be stated that the post office was constituted as an agent of the Appellate authority and for computation of the

period of limitation for preferring the appeal, the entrustment of the appeal papers with the postal authorities should be counted as the date of

preferring of the Appeal. In the absence of such a specific provision, it is only the date when actually the appeal reaches the Appellate authority

that should be counted as the date of preferring the Appeal. Learned Additional Central Government Standing Counsel brings to my notice the

pronouncement of another Bench of the High Court of Gujarat in A. Raman & Co. .V. Union of India and Others, 1981 ELT 952 Guj. wherein

the view taken is when there is no specific or implied provision under the Act or the Rules framed thereunder, it could not be inferred that the post

office was constituted as an agent in which the appeal could be filed, and when the appeal filed through post office reached late before the

Appellate authority, it cannot be held to have been filed within the time limit prescribed therefore. My attention has also been drawn to a

pronouncement of the Supreme Court in F.N. Roy V. Collector of Customs and others, 1983 ELT 1296 where the Supreme Court held while

dealing with the provisions of the sea Customs Act, that where the appeal was sent by post, only the date of receipt must be taken to be the date

when he appeal was filed. The question may be viewed from a different angle, if the authorities notified the party that the Appeal would be

entertained through post and in such a case, there is a room for an argument that the authorities accepted the post office as their agent and the

posting of the Appeal would satisfy the requirement of preferring the Appeal and the date of posting should be requirement of preferring the

Appeal and the date of posting should be counted as the date of preferring the Appeal. Such is not the case here. Hence, I have to reject the first

contention of the learned counsel for the petitioner.

Mr. K. Jayachandran, learned counsel for the petitioner, would next counted that even though prior to the amendment, Section 35 of the Act

did not contain a specific provision for condonation of delay such a power must be implied and the second respondent ought to have exercised his

discretion with regards to condonation of delay. The second respondent is not a court and it is a well-settled principle that the power. of

condonation of delay with regard to preferring of an appeal before an authority like the second respondent, in the absence of a specific provision

conferring such a power, is not a matter of inference or implication, and provisions of the Limitation Act would not apply to such proceedings. In

N.B. Golangada v. Union of India and others, 1978 ELT 61 ,a Bench of High Court of Bombay, squarely dealt with this question and repelled the

contention that the Appellate authority like the second respondent is competent to condone the delay in preferring the Appeal. While doing so, it

was pointed out that in neither section 35 nor in any other provision of the Act or the Rules framed thereunder, there is any provision, which

empowers an Appellate authority to condone the delay in preferring the Appeals. Hence, this contention also fails.

Thirdly, Mr. K. Jayachandran, learned counsel for the petitioner, would contend that the second respondent in any event ought to have afforded

an opportunity of personal hearing to the petitioner, and in this regard, the complains of violation of principles of natural justice. The principles of

natural justice are not a rigid code, inflexible in all contingencies without reference to the facts and circumstances of the case. when the appeal itself

was time barred and was liable to be rejected on that ground, there was no question of affording a personal hearing the petitioner. Such a view has

also been expressed by the Supreme Court in F.N Roy v. Collector Customs, Calcutta and others, 1983 ELT 1296 where again the appeal was

preferred out of time, and it was observed. There is no rule of natural justice that at every stage a person is entitled to a personal hearing. All the

three contentions of the learned counsel for the petitioner stand eschewed. The result is, the writ petition fails and the same is dismissed. No costs.