ORDER
Harish Chander, Member (J)
1. The Collector of Central Excise & Customs, New Delhi has filed an appeal being aggrieved from order in appeal No. 30-35/CE/DLH/85 dated 11.4.85 passed by the Collector (Appeals), Central Excise, New Delhi. The said appeal was presented in the Registry on 24.7.85. In column No. 3 of the memorandum of appeal viz. EA-3 the date of communication of the copy of order in appeal has been mentioned as 12.4.85. Simultaneously the appellant had also filed an application for condonation of delay. The application for condonation of delay was also received in the Registry on 24.7.85. The applicant has also filed a statement explaining the reasons for delay in filing of the appeal. The said statement was duly received in the Registry on 30.1.86.
2. Shri B.R. Tripathi, the learned SDR, has appeared on behalf of the applicants. He has reiterated the contention made in the application for condonation of delay and the statement explaining the reasons for delay with a list of dates starting from 1976 to 11.4.85. Shri Tripathi, SDR, has pleaded that the appellant was prevented by sufficient cause in the late filing of the appeal. He has further pleaded that things always take some time in the Government Department and the Bench should consider the application for condonation of delay liberally. In support of his arguments he has cited a judgment of the Hon’ble Supreme Court in the case of State of Uttar Pradesh v. Bahadur Singh and Ors. reported in 1983 ECR 1556 where the Hon’ble Supreme Court had held that the departmental authorities charged with the duty to implement the law should be vigilant, but one aspect cannot be overlooked that a departmental authority may delay moving of the higher court for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable. These are relevant considerations which must enter a judicial verdict before rejecting such case on the ground of delay. Shri Tripathi, the learned SDR, has referred to another judgment in the case of C.C. Bombay v. Godrej Soap Ltd. reported in 1985 (21) ELT 529 where the Tribunal had held that the Limitation Act does not make any distinction between the Government and the private individual in the matter of condonation of delay under Section 5, yet its case can be said to be a different case from that of an individual who is to make up his own mind who can normally be presumed to be aware of all the relevant factors of the case. The Government on the other hand, has to take into consideration the public interest and so, long time may be required for enquiry and consideration before taking a final decision in the matter. He has pleaded that the delay in the filing of the appeal was condoned by the Tribunal. Shri Tripathi, SDR, has pleaded that in view of the facts and circumstances explained by him and the judgment cited by him, the delay in the filing of the appeal may be condoned.
3. In reply, Shri R.C. Bhalla, the learned Advocate, has pleaded that the appellant has not been able to establish that there was sufficient cause in the late filing of appeal. He has pleaded that the appellant is to explain each and every day’s delay. There is no explanation of any delay from 3rd July to 16th July 1985. Even the sequence of events filed by the appellant does not help him. He has referred to a judgment of the Hon’ble Kerala High Court in the case of State v. Krishna Kurup Madhava Kurup reported in AIR 1970 Kerala 211 wherein the Hon’ble High Court had held that the State is not entitled to a special treatment in a court. He has further pleaded that the Hon. High Court had held that the law of limitation pertains equally for or against a private individual as also a Government. No special indulgence can be shown to the Government which in similar circumstances is not to be shown to an individual suiter. He has referred to another judgment of the Hon. Supreme Court in the case of Ram Lal v. Rewa Coalfields Ltd. reported in AIR 1962 S.C. 361. He has pleaded that the Hon. Supreme Court had held that after the expiry 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. In other words, when the period of limitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light-heartedly disturbed. Shri R.C. Bhalla, the learned Advocate, has pleaded for rejection of the application for condonation of delay.
4. In reply, Shri B.R. Tripathi, the learned SDR, has pleaded that no hard and fast rule can be laid down for condonation of delay. He has pleaded that each and every case has to be judged in its own way.
5. After hearing both the sides and going through the facts and circumstances of the case we would like to observe that the discretion in condoning the delay can only be exercised in favour of the party in case the appellant is able to satisfy the court that the appellant was prevented by sufficient cause in the late filing of the appeal. In the present matter before us the order in appeal was communicated to the appellant on 12.4.85. In terms of the provisions of Sub-section (3) of Section 55B of the Central Excises and Salt Act, 1944 every appeal has to be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise or as the case may be, the other party preferring the appeal. Sub-section (5) of Section 35B of the Central Excises and Salt Act, 1944 empowers the Tribunal to condone the delay if the Tribunal is satisfied that there was sufficient cause in presenting it within that period. The appeal was presented in the Registry on 24.7.85. Thus there is a delay of 12 days. The appellant’s application for condonation of delay received in the Registry on 24.7.85 is reproduced as under:-
“Application for Condonation of Delay in filing an appeal
1. The appellant has filed an appeal against the order-in-appeal No. 30-35/CE/DLH/85 dated 11.4.85 under C.No. 377-376, 419, 593 & 594/CE/Appl/DLH/80 before the Hon’ble Tribunal.
2. A copy of impugned order was served in this office on 12.4.85 and the appellant was required to file the appeal within the period of 3 months from 12.4.85. The delay in filing the appeal is regretted.
3. It is therefore prayed that the delay of 12 days in filing an appeal be condoned and issue decided on merits.”
Subsequently the appellant has also filed a statement explaining the reasons for delay. The contents of datewise explanation are reproduced as under:-
“Statement explaining datewise movement of the relevant file after the date of receipt of impugned order, is as under:-
1. Order-in-Appeal No. 30-35/CE/DLH/85 dated 11.4.85 passed by the Collector (Appeal), Central Excise, New Delhi in the case of M/s. National Chemical Industries, New Delhi was received in this office on 12.4.85. The last date for filing an appeal was 11.7.85. The case was processed and it was decided to go in appeal against the said order-in-appeal. Due to unavoidable delays as described below appeal could be filed before the CEGAT in the forenoon of 24.7.85 along with the application for condonation of delay for 12 days.
2. Date of receipt of the impugned order in the Collectorate’s Office – 12.4.85.
3. Date of receipt of the Order-in-Appeal in the Judicial Branch -15.4.85.
4. The order was processed and put up to the Assistant Collector (Judicial) on 20.4.85 and on the same day it was put up to the Additional Collector.
5. On 24.4.85, the Additional Collector, Central Excise, New Delhi, ordered for calling for the files from the Divisional Office.
6. File was received back in the Judicial Branch on 6.5.85.
7. Letter calling for the files to Assistant Collector, MOD-I, New Delhi was despatched on 7.5.85.
8. The Division Office was reminded twice on 22.5.85 and on 11.6.85 but the file was not received. ADO reminder dated 21.6.85 was also sent to the Assistant Collector, MOD-I, New Delhi.
9. The Assistant Collector, MOD-I, New Delhi vide his letter C.No. V(14D)13/3/79/Pt./5291 dated 26.6.85 received on 28.6.85 intimated that files are lying with the Collector (Appeals), a copy of the same was endorsed to the Collector (Appeals)’s office also.
10. On 3.7.85 relevant case files were procured from the Collector (Appeals)’s office.
11. Files were put up to the Assistant Collector (Judicial) and same were put up to the Additional Collector on 3.7.85.
12. Deputy Collector, Central Excise, Faridabad was holding the additional charge of the Additional Collector's Central Excise, New Delhi and he was preoccupied with the work relating to the Collector's Conference (North Zone) which was to be held on 16th and 17th of July, 1985. Hence there was unavoidable delay due to this reason. 13. Draft appeal was recommended for approval on 18.7.85 by the Additional Collector. 14. The Collector, Central Excise approved the draft appeal in the evening of 22.7.85, (20th and 21st being holidays). 15. On 23.7.85, the relevant enclosures to the appeal were prepared along with the fair appeal and application for condonation of delay. The same was submitted for the signature of the Collector, Central Excise. 16. Appeal along with the application for condonation of delay was filed before the CEGAT in the forenoon of 24.7.85."
A simple perusal of the application for condonation of delay and datewise statement shows that the delay in filing of appeal is on account of the movement of file from one channel to another channel in the office/ Collectorate of the appellant. It is a settled law that the provisions of statute are mandatory. Only in exceptional circumstances the delay can be condoned if the statute provides, and the appellant is able to show that he was prevented by sufficient cause in the late filing of the appeal. Shri B.R. Tripathi, the learned SDR, had referred to a judgment of the Hon’ble Supreme Court in the case of State of Uttar Pradesh v. Bahadur Singh reported in 1983 ECR 1556D. The learned SDR had pleaded that the Hon. Supreme Court had held that this aspect cannot be overlooked that a departmental authority may delay the moving of the higher court for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable. These are relevant considerations which must enter a judicial verdict before rejecting such case on the ground of delay. Para No. 2 of the said judgment is reproduced as under:-
“2. The narrow and only question with which we are concerned in this appeal is, whether the High Court was justified in dismissing a writ petition U/Arts. 226 & 227 of the Constitution filed by the State of U.P. on the sole ground that the petition had been filed after a long delay. The High Court observed that the usual period of limitation was 90 days for filing the writ petition and, computing limitation on this basis, held that the petition was delayed by 42 days. Frankly speaking, we know of no such period of limitation prescribed by any statute nor any such provision was brought to our notice. The only known principle is that the court may not examine stale causes as the court helps the vigilant and not the indolent. It is a rule devised on the principle of judicial circumspection and has to be applied wisely. And look at the facts-situation. The explanation for the delay offered was convincing and acceptable. Further, the State of U.P. had preferred a writ petition against the decision of the appellate authority under the U.P. Agricultural Land Ceiling Law. In the proceedings under such a law there are no two parties as is the case in a litigation between two private parties wherein each would be prosecuting and watching the proceedings regularly. In a proceeding under land ceiling law, the departmental authority has to be apprised of an adverse decision, and further decision has to be taken whether the case is one required to be taken to the higher court. Not that the departmental authorities charged with a duty to implement the law should not be vigilant, but one aspect cannot be overlooked that a departmental authority may delay the moving of the higher court for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable. These are relevant consideration which must enter a judicial verdict before rejecting such cause on the ground of delay.”
The matter before the Hon. Supreme Court was in respect of the filing of writ petitions under Articles 226 & 227 of the Constitution of India by the State of U.P. after expiry of three months and there was delay of 42 days. The Hon. Supreme Court had observed that :
“Frankly speaking we know of no such period of limitation prescribed by any statute nor any such provision was brought to our notice. The only known principle is that the court may not examine stale causes as the court helps the vigilant and not the indolent. It is a rule devised on the principle of judicial circumspection and has to be pleaded wisely.”
The considerations in condoning the delay in respect of a writ petition where there is no limitation provided in the Constitution of India. In the present matter before us Sub-section (3) of Central Excises & Salt Act, 1944 prescribes limitation and Sub-section (5) of Section 35B of Central excises and Salt Act, 1944 vests power with the Tribunal to condone the delay if the appellant is able to satisfy that he was prevented by sufficient cause in late filing of the appeal. The Hon’ble Supreme Court had condoned the delay only in respect of writ petition where no limitation is prescribed and also on the grounds of some delay which was also explainable. The judgment of the Tribunal cited by the learned SDR in the case of Collector of Customs v. Godrej Soap Ltd. reported in 1985 (21) ELT 529 also does not help him as the facts are different. The Tribunal had followed the judgment of the Hon. Supreme Court in the case of State of U.P. v. Bahadur Singh and Ors. reported in 1983 ECR 1556D as the delay in the filing of appeal is not explainable and as such it is not a fit case where the delay should be condoned. The Hon’ble Supreme Court in the case of State of West Bengal v. Administrator, Howrah Municipality and Ors. reported in 1972 Supreme Court 749 had held that the expression “sufficient cause” cannot be construed too liberally merely because the party in default is Government. Para 27 of the Hon. Supreme Court’s judgment is reproduced as under:-
“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 gainsaid that the same consideration that will be shown by courts to a private party when he claims the protection of S.5 of the Limitation Act should also be available to the state.”
Shri R.C. Bhalla, the learned Advocate, had cited a judgment of the Hon. Supreme Court in the case of Ramlal v. Rewa Coalfields Ltd. reported in AIR 1962 Supreme Court 361 which had laid down the principles for the condonation of delay. Headnote (b) from the said judgment is reproduced below: –
“(b) Limitation Act (1908), S. 5 – Principles.
In construing S. 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. (Para 7)
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 S.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 S.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 S.14 cannot to the same extent and in the same manner be invoked in dealing with applications which fall to be decided only under S.5 without reference to S. 14. (Para 12) 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." (Para 15) The learned Advocate for the respondent has also referred to anohter judgement of the Hon'ble Kerala High Court in the case of State of Kerala v. Krishna Kurup Madhav Kurup reported in AIR 1971 Kerala 211 wherein the Hon'ble High Court had held that - "The State, it is true, is not entitled to special treatment in a court. I respectfully agree with the observations made by a Division Bench of this Court in 1963 Ker. LJ 979 to the effect:
“The law of limitation operated equally for or against a private individual as also a government. No special indulgence can be shown to the government which in similar circumstances is not to be shown to an individual suiter. If it is felt that the Government departments delay matters so much that the periods of limitation already prescribed in the Limitation Act viz. 3 months is not long enough for the government or its agents, then the better course is to obtain amendment of the law through the legislature rather than to make an application to the court, invoking its power under Section 5 of the Limitation Act. We are of opinion that such delays in Government offices are no justification for invoking the power of the court under Section 5 and would not amount to sufficient cause.” Nevertheless, we have to take a practical view of the working of government without being unduly indulgent to the slow motion processes of its wheels. (Are we not painfully aware of the public criticism of delays in courts and apprehensive of a possible rebuke, physician, heal thyself?). When an appeal is pending, attention of counsel is usually drawn to the questions arising therein when it is posted for hearing. Quite probably, after the Full Bench decision was reported, the land acquisition appeals affected by that ruling were posted to be disposed of in its light. Government counsel would then have agreed to the absence of jurisdiction of the District Court and prayed for a return of the appeal. Meticulously to dissect the period of pendency of the appeal into the pre Full Bench and the post Full Bench sections is to be too artificial. Broadly speaking, there was no remissness in the conduct of the governmnet pleader and none on the part of government.”
In view of the above discussions, we very respectfully follow the judgment of the Hon’ble Supreme Court in the case of State of West Bengal v. Administrator, Howrah Municipality reported in AIR 1972 Supreme Court 749 and in the case of Ramlal v. Rewa Coalfields Ltd. reported in AIR 1962 S.C. 361. We observe that the Department has produced a date-chart to explain the delay. The position as to how the file was handled does not lay any basis for condonation of delay. We observe that the matter all along has been handled by the Department in a very routine manner and there is nothing on record to show that the Department was diligent enough or showed any sense of urgency to ensure that the appeal was filed in time. We hold that the appellant was not prevented by sufficient cause in the late filing of the appeal. The appellant’s application for condonation of delay is rejected.
6. Since we are rejecting the appellant’s application for condonation of delay, the appeal No. E/1793/85A is dismissed being hit by limitation. We are not going into the merits of the matter. In the result the application for condonation of delay is rejected and the appeal is dismissed.