ORDER
Harish Chander, Member (J)
1. M/s. Godrej Boyce Mfg. Co. Ltd., Bombay has filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals), Bombay. The said appeal was presented in the Registry on the 26th day of December, 1988. In column No. 3 of Memo, of appeal, date of communication has been mentioned as 15th August, 1988. Simultaneously an application for Condonation of Delay was also filed. Shri Gopal Prasad, the learned consultant who has appeared on behalf of the applicant has reiterated the contentions made in application for Condonation of Delay. He has made a request for adjournment for substantiating his arguments for condonation of delay. Shri A.S.R. Nair, the learned SDR has opposed the request for condonation of delay. After hearing both sides, the Bench had pointed out to Shri Gopal Prasad, the learned consultant the Hon’ble Supreme Court’s decision in the case of Union of India and Ors. v. Visveswaraya Iron and Steel Ltd. -1987 (32) ELT 458 where it was held that “But we do not see why any further time should be granted to the petitioners to file a supplementary affidavit”. The matter had come up for hearing before the Bench on 13th January, 1988 and to meet the ends of justice the Bench granted adjournment for 8th March, 1989. Almost 37 days have passed the applicant has not taken any care in substantiating his arguments for condonation of delay especially when the learned consultant had duly intimated to the applicant for supplementing their arguments for their claim of condonation of delay. We do not find any justification in adjourning the matter further in the light of the judgment of the Hon’ble Supreme Court and accordingly, reject the request of the learned consultant for the grant of adjournment.
2. On the merits of the application of the condonation of delay Shri Gopal Prasad, the learned consultant has made the point that the officer who was dealing the matter of the appellant company was on leave and pleaded that the applicant had lost sight of the papers and as such the appeal could not be filed within the stipulated period. He further states that in case the delay in the filing of the appeal is not condoned, it will amount to great injustice and irreparable loss to the applicant and the amount of refund involved is Rs. 84,188.75. In support of his arguments he has referred to the judgment of the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. 1988 (19) ECR 565.
3. Shri A.S.R. Nair, the learned Senior Departmental Representative has opposed the Condonation of delay and stated that in view of the earlier judgment of the Tribunal, the applicant’s request for condonation of delay may be rejected.
4. The Hon’ble Supreme Court in the case of Union of India v. Tata Yodogawa Limited -1988 (38) ELT 739 has held that filing of appeal after expiry of limitation on account of movements of papers is not sufficient cause. In the present matter before us the only plea of the applicant is on account of leave of one of the officer who was dealing with the file. The applicant has not taken care even in mentioning of the name of the officer who was dealing with the file and there is also no confirmation in the form of affidavit from the officer confirming the factum of leave and leave record of the company has not been placed before us. The applicant company is a big organisation even if the one officer was on leave, there must be some other officer who was looking after the matters of the company. Hon’ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 Supreme Court 361 had laid down the following principles as reproduced below :-
“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 and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. – ILR 13 Mad. 269, Approved.
It is however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it.
Considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the Court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to be same extent and in the same manner be invoked in dealing with applications which fall to be decided only under Section 5 without reference to Section 14.
The effect of the explanation is that if the party who has applied for extension of period shows that the delay was due to any of the facts mentioned in the explanation that would be treated as sufficient cause and after it is treated as sufficient cause the question may then arise whether discretion should be exercised in favour of the party or not.”
5. Keeping in view the observation of the Hon’ble Supreme Court and earlier judgment of the Tribunal, we do not find any justification in condoning the delay. We hold that the applicant was not prevented by sufficient cause in the late filing of the appeal. The delay is of 37 days. Applicant’s request for Condonation of delay is, therefore, rejected.
6. Since we have rejected the applicant’s request for condonation of delay, the appeal filed by the appellants is also dismissed being hit by limitation without going into the merits of the same.