ORDER
Harish Chander, Member (J)
1. Collector of Central Excise, Madras has filed an appeal being aggrieved from order in appeal No. 136/82 (M) dated 12-4-1982 passed by the Appellate Collector of Central Excise, Madras. In column No. 3 of the memorandum of appeal the date of service has been mentioned as 12;4-1982. The appellant had moved an application for amendment of the appeal and has requested for making the amendment to the effect that the date had been wrongly written as 12-4-1982 against the correct date of 27-4-1982. By a separate order dated 20-2-1986, the amendment of the appeal was allowed to the effect that para No. 3 of form E. A.3 should be read as 27-4-1982. In terms of the provisions of Sub-section (3) of Section 35B of the Central Excises and Salt Act, 1944 the appeal was to be filed within three months. By virtue of the provisions of Removal of Difficulties Order No. GSR 597(E), dated 11-10-1982 the appeal could have been filed within six months. The appellant has filed an application for condonation of delay with an enclosure explaining the datewise delay in filing the appeal. The said appeal was received in the Registry on 22-11-1982. The application for condonation of delay is reproduced as under :-
“1. An appeal has been filed before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide Collector’s letter C. No. V/68/2/5/82 JC dated 18-11-1982 in terms of the provisions of the Sub-section(2) of Section 35-B of the Central Excises and Salt Act, 1944. against the Order-in-Appeal No. 136/82(M) dated 12-4-1982 passed by Appellate Collector of Central Excise, Madras.
2. The above order in Appeal No. 136/82(M) dated 12-4-1982 was received in the Office of the Collector of Central Excise, Madras on 27-4-1982 and the time-limit of 6 months for filing an appeal as per the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982 dated 11-10-1982, has expired on 27-10-1982.”
As per Section 36(2) of the Central Excises and Salt Act, 1944 which was in force prior to the period 11-10-1982, time limit of one year (i.e. upto 11-4-1983) was available to the Government for reviewing the above mentioned Order-in-Appeal of the Appellate Collector of Central Excise. The present case was being processed and was to be submitted to the Government of India proposing review under Section 36(2). In the meanwhile, the amendment to the Central Excises and Salt Act, as made by Section 50 of Finance (No. 2) Act, 1980 relating to appeals before Appellate Tribunal came into force with effect from 11-10-1982, by virtue of Notification No. GSR 597 (E) dated 11-10-1982. In terms of amended provisions of Central Excises and Salt Act, 1944 appeal against the Order-in-Appeal No. 136/82(M) dated 12-4-1982 of the Appellate Collector will have to be filed before Appellate Tribunal and the time-limit for the same has expired on 27-10-1982. The reasons for the day-wise delay from 27-4-1982 i.e. the date of receipt of the Order-in-Appeal, is enclosed.
It is, therefore, prayed that the Appellate Tribunal may admit the delay as explained in the enclosure and condone the delay in filing the appeal within 6 months period and the appeal may be admitted in terms of the provisions of Sub-section (5) of Section 35-B of the Central Excises and Salt Act, 1944. Day-wise delay in Filing the Appeal
(Enclosure to application for condonation of the delay in filing the appeal)
27-4-82 to 11-10-82-Examination of the Order-in-appeal No. 136/82(M) dated 12-4-1982 for recommending review by Government under Section 36(2) of Central Excises and Salt Act, 1944.
11-10-82 to 5-11-82-Formation and Organisation of the work of Judicial Cell consequent on change in appeal procedure dealing the matters pertaining to appeals in the Collectorate.
5-11-82 -Receipt of Collector’s Order regarding filing of appeal against Order-in-Appeal No. 136/82(M) dated 12-4-1982 in the Judicial Cell. The draft Memorandum of appeal alongwith condonation of delay in filing the appeal was put upto Assistant Collector/Collector,
12-11-82-Persued by Assistant Collector and put up to Collector for approval.
16-11-82-Approved by Collector.
18-11-82-After typing the documents the appeal was despatched.”
2. Shri B.R. Tripathi, the learned SDR, has appeared on behalf of the applicants. He has reiterated the contentions made in the application for condonation of delay. He has referred to the proviso of erstwhile Sub-section (2) of Section 36 of the Central Excises and Salt Act, 1944. He has pleaded that the Revenue had a right to review the matter within one year from the date of the order passed by the Appellate Collector of Central Excise. He has pleaded that in the instant case the Appellate Collector of Central Excise had passed the order on 12-4-1982 and as such the Revenue could have reviewed the matter within one year from the date of the passing of the order by the Appellate Collector of Central Excise. He has pleaded that all the time it was the intention of the Revenue to review the order and the matter was under study. He has stated that due to change of law the Revenue had to file an appeal, and by the amendment of law the substantive right of review cannot be lost. Shri Tripathi, SDR, has also pleaded that on the same issue the appellant has also filed an appeal, and the same is also pending. He has pleaded that the delay of 26 days may be condoned as the appellant was prevented by sufficient cause.
3. Shri M. Chandrasekharan, the learned Advocate, has appeared on behalf of the respondent. He has pleaded that there is no sufficient cause which can justify the condonation of delay. He has referred to the judgment of the Hon’ble Delhi High Court in the case of Associated Cement Companies Ltd. v. Union of India reported in 1981 E.L.T. 421 and has laid special emphasis on para No. 9 of the said judgment. Para 9 of the said judgment on page 424 is reproduced as under :-
“9. The substantive part of Section 36(2) deliberately uses wide language so that a suo motu revision by the Central Government can be made on any ground which touches the correctness, legality and propriety of the decision under Section 35 or Section 35-A. A sufficiently long period of limitation for the issue of notice required by the first proviso is provided in the second proviso, probably because the opinion of the Central Government that the appellate order is either not correct or legal or proper is not so prejudicial to the person to be affected by the proposed order as should be the order which would be proposed by the Central Government under the third proviso. This is the reason why the shorter limitation is provided for under the third proviso for reviewing the appellate order because the Central Government is of the opinion that the appellate order has resulted in a non-levy or short-levy of duty. Short-levy or non-levy of duty results in great prejudice to the Revenue and revision of that order on that ground would also result in great prejudice to the assessee. Since a finding of short levy and non-levy and the order passed on such a finding is of comparatively greater importance both to the revenue and the asses-see, it is expected that the revenue would be prompt to initiate action by way of revision under the third proviso and the assessee should also be relieved of the risk of such revision after a comparative short period of six months. The third proviso has been inserted by the amendment of 1-7-1978 to distinguish revision relating to orders of short-levy or non-levy from the review of other orders. For instance, an appellate order for confiscation or penalty may not be an order of short-levy or non-levy and would fall only under the second proviso while the third proviso would not be attracted. On the contrary, an order of short-levy or non-levy under Section 35-A would fall only under the third proviso and not the second one.”
He has referred to another judgment in the case of Corn Products Co. (India) Ltd. and Anr. v. Union of India and Anr. reported in 1984(16) E.L.T. 177 where the Hon’ble Bombay High Court had held that 3rd proviso to Section 36(2) of the Central Excises Act has the effect of restricting the revisional jurisdiction of the Central Government in matters which arise out of the order under Ssections 35 and 35 A relating to non-levy, short-levy or erroneous refund. This restriction is in the form of an express provision that the notice to show cause in respect of these matters must be given within the time-limit specified in Section 11A i.e. within the period of six months. Since the notice to show cause by the Central Government in the instant case was issued beyond the period of six months, consequently, the exercise of revisional jurisdiction by the Central Government is wholly without jurisdiction.
The learned Advocate has pleaded that in the application for condonation of delay there is no proper explanation for condonation of delay and the application for condonation of delay is not supported with an affidavit. He has also pleaded that the argument of the learned SDR that the Revenue had lost its valuable vested right is not tenable. He has referred to a judgment of this Tribunal in the case of Atma Steels Pvt. Ltd. and Ors. v. C.C.E., Chandigarh and Ors. reported in 1984 (17) E.L.T. 331 and has laid special emphasis on para 73 of the said judgment where the Tribunal had held that “vesting of rights” cannot be pleaded by the State. He has pleaded for dismissal of the application for condonation of delay as well as appeal being hit by limitation.
4. Shri B.R. Tripathi, SDR, in reply states that there are two appeals one by the Revenue and the other by the Respondent. The equity demands that the delay in filing of appeal by the Revenue may be condoned as similar issue is involved in both the appeals. He has also pleaded that proviso 3 to erstwhile Section 36 is not applicable in the case of the Revenue. Proviso 2 of the erstwhile Section 36 is applicable and he has pleaded for acceptance of the application for condonation of delay.
5. After hearing both the sides and going through the facts and circumstances of the case, we would like to observe that the grounds stated in the application for condonation of delay are not sufficient enough to lead us to the conclusion that the applicant was prevented by sufficient cause in the late filing of the appeal. With the application for condonation of delay, the date-wise sequence of events also does not help the applicant in any way. The applicant has to adjust his internal correspondence/affairs in his own way. After expiry of limitation prescribed under the statute, the respondent acquires substantial rights. In terms of Removal of Difficulties Order No. GSR 597(E) dated 11-10-1982 the appellant gets a further period of 3 months and in the present matter before us the appeal was filed after the expiry of the period of six months. The learned SDR’s argument that the Revenue had a right to review the matter in terms of the provisions of erstwhile Section 36 of the Central Excises and Salt Act, 1944 does not help the applicants in any way. A larger Bench of the Tribunal in the case of Atma Steels Pvt. Ltd. v. C.C.E., Chandigarh reported in 1984 (17) E.L.T. 331 had held that there is no vested right in the case of State. Paragraph numbers 72, 73, 74, 75, 76 and 76 from the said judgment are reproduced as under :-
“72. We have examined this contention of the learned representative of the Respondents with great care because it raises a delicate point of law but we cannot persuade ourselves to agree with the arguments advanced by the learned SDR. Shri Lakshmi Kumaran. We say so because in the first instance, we firmly feel that the question of “vested right” arises only in favour of the “Subject”, which would be assessee or taxpayer in this case, and can never be urged by the “State”, to be existing in its favour. We feel fortified in this view, in the context of definition of this term ; “vested rights” as outlined in Black’s Law Dictionary (Fifth Edition ; page 1402).
73. We consider it expedient to extract and reproduce the relevant portion of the paragraph, because apart from the fact that this authority lays down the principle that only those rights which are : “complete and consummated”, can be characterised as “vested rights” ; the whole description gives an unmistakable indication that the concept of vested rights has inherent in itself the connotation that it exists only in favour of private citizens and the definition does not even postulate that the State or the Government can agitate or assert existence of “vested rights”. The relevant portion reads as :-
“In constitutional law, rights which have so completely and definitely accrued to or settled in a person that they are not subject to be defeated or cancelled by the act of any other private person, and which it is right and equitable that the government should recognize and protect, as being lawful in themselves, and settled according to the then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or of which he could not justly be deprived otherwise than by the established methods of procedure and for the public welfare. Such interests as cannot be interfered with by retrospective laws ; interests which it is proper for State to recognize and protect and of which individual cannot be deprived arbitrarily without injustice. American States Water Service Co. of California v. Johnson. 31 Cal. App. 2d 606, 88p, 2d 770, 774. Immediate or fixed right to present or future enjoyment and one that does not depend on an event that is uncertain. A right complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs and fixed or established, and no longer open to controversy.”
(emphasis supplied).
This thus puts the matter beyond doubt that the “vesting of rights” cannot he pleaded by the “State”.
74. We also find support for our other observation ; namely that unless the rights are completely determined, they cannot be considered to be “vested rights”, besides above quoted extract; from Maxwell on the Interpretation of Statutes (Twelfth Edition ; page 17) where it is observed by reference to a judgment of the Judicial Committee that “the mere right existing at the date of the repealing statute to take advantage of the provisions of the Act repealed, was not a “right accrued”…”
75. This view has been propounded by Saurashtra High Court also, in a case reported as AIR 1954 Saurashtra page 66, arising put of legislation pertaining to Rent Control, to the effect that a right which requires determination by some authority-it being a claim for refund under the relevant law in that case, cannot be treated to be a vested or accrued rights. The plea, therefore, that such a right could not be effected by repeal of law under which it was claimed, was not entertained.
76. We, therefore, find the contention of the learned SDR as to the existence of vested rights in favour of the State to be absolutely untenable because of the stage the returns are filed or assessment made, or refunds are allowed by the concerned officers, question of “vesting” of any right in favour of the State, acting through the revenue authorities doe not arise. For, even issuance of Show Cause Notice, does not automatically create an accrued right, because as rightly urged by Shri Chandersekharan, the learned counsel for one of the appellants, that the right evea at that stage is inchoate, and that it becomes complete only when the adjudication order is passed.
77. We have thus to examine the issues, shorn of this theory of “vested rights”. We observe that the generally accepted view, supported by judicial authorities; is to the effect that any legislation while bringing about an amendment, normally incorporates a saving clause, whenever there is an intention to protect previous operation of the repealed law.” Accordingly, we hold that there is no vested right in the case of the State and there is also no saving clause in the Act when the amendment came into force.
6. During the course of arguments the learned SDR had pleaded that the application for condonation of delay should be accepted on the grounds of equity. We are afraid that this argument does not help the applicant in any way. The mere fact that the respondent has filed another appeal on the same issue within the prescribed period of limitation cannot deprive him from the right which he has acquired in the late riling of appeal by the Revenue.
7. In view of the aforesaid discussion, we hold that the applicants were not prevented by sufficient cause in the late filing of the appeal. Therefore, we reject the application for condonation of delay.
8. Since we have rejected the application for condonation of delay, the appeal filed by the Revenue is dismissed being hit by limitation.