ORDER
G.A. Brahma Deva, Member (J)
1. This is an application filed by the applicants requesting to condone delay in filing the appeal. There is a delay of 138 days in filing this appeal.
2. The break up of the delay as given in the latest affidavit filed by the applicant dated 4-5-1993 is as follows :–
(i) Date of receipt of Order-in-appeal 23-5-1992.
(ii) Date of receipt of Revision Application by the 21-8-1992.
Revisionary Authority
(iii) Date of receipt of Order-in-Revision 8-12-1992.
(iv) Date by which appeal was to be filed to the 23-8-1992.
CEGAT
(v) Date on which the appeal was actually filed to 11-1-1993.
CEGAT
(vi) Time spent on Revision Application namely 108 days.
from the date of receipt of the Revision
Application by the Joint Secretary to the Govt. of
India and the date of receipt of the order of the
Revisional Authority on the said Revision Application
(vii) No. of Holidays immediately proceeding the 2 days.
date of filing of the appeal to the CEGAT (9th and
10th of January, 1993 being holidays)
3. It was explained by Shri Gopal Prasad, learned Consultant that delay was due to the fact that against the impugned order a Revision Petition was filed before the Government of India. By mistake Revision Petition was filed by the applicant before the Govt. of India in view of the guidance given in the impugned order as per Note 1(a) that revision application under Section 35EE may be addressed to the Joint Secretary, Govt. of India. Since the revision application against the impugned order was filed in time and the delay, if any, in perusing wrong remedy has to be condoned. In support of his contention he referred to the decisions of the Tribunal in the case of Union Carbide India Ltd., Calcutta v. Collector of Customs, Calcutta, reported in 1984 (16) E.L.T. 525 and in the case of Dunlop India Limited v. Collector of Central Excise, Calcutta, reported in 1984 (16) E.L.T. 643, wherein delay was condoned if revision petition was submitted within time after 11-10-1982. He also referred to the decision of the Tribunal as per Order No. 2232/87-B.2 dated 7-12-1987 reported in 1989 (42) E.L.T. 82 (Tri.) wherein delay was condoned for the period spent before the Government of India by way of Revision instead of Appeal. He said that major portion of delay was caused during the pendency of the Revision petition before the Govt. of India. If time taken before the Govt. of India is excluded, it remains 28 days which has to be considered. On receipt of the dismissal order passed by the Govt. of India on maintainability, the appellants were all along diligent in consulting the counsel and preparing the appeal and there was no negligence or latches on the part of the applicants in filing the appeal. It was emphasised that delay in filing the appeal occurred firstly due to the lack of knowledge on the part of the applicants as to the correct Appellate Authority before whom the said appeal could be filed and thereafter delay that has occurred is due to preparation of papers and not due to any negligence on the part of the appellants as can be seen from the affidavit filed that authorised person Shri S.B. Das has taken steps for preparing the appeal on 9-12-1992 and ultimately on preparing the appeal on 31-12-1992 the appeal papers were duly presented before the Tribunal on 11-1-1993. He submitted that Court should not take too strict and pedantic stand which will cause injustice while considering application for condonation of delay as it was held in the case of Bhag Singh and Ors. v. Major Daljit Singh and Ors., reported in 1987 (32) E.L.T. 258 and a liberal approach is needed as observed by the Supreme Court in the case of Collector, Land Acquisition Anantnag and Anr. v. Mst. Katiji and Ors., reported in 1987 (28) E.L.T. 185 (S.C.), as well as by the High Court of Allahabad in the case of Paliwal Steels Pvt. Ltd., v. Union of India and Ors., reported in 1988 (35) E.L.T. 465 (All). He also referred to the decision of the Supreme Court in the case of State of West Bengal v. Administrator, Howrah Municipality and Ors., reported in AIR 1972 S.C. 749. To a query from the Bench is it not within the knowledge of the appellants about the correct forum at the earliest possible time in view of the written submissions made by the very authorised Representative to the Government of India for transferring the case to the Competent Authority on 14-9-1992, he submitted that he was under the bona fide impression that the case would be transferred to the Competent Authority. There was no negligence either on the part of the applicants or on the part of the Advocate and at any rate the applicant should not suffer for the negligence and indifference of the solicitors as it was observed by the Tribunal in the case of Zenith Electronics v. Collector of Customs, Bombay, reported in 1986 (25) E.L.T. 746. He requested to condone delay in filing the appeal since delay has not occurred due to the deliberate or culpable negligence but due to the ignorance in filing the revision before the wrong forum.
4. While opposing the application for condonation of delay Shri M.K. Jain, learned SDR submitted that it is not correct to say that the applicants were misled by Note No. 1 of Notes Guidance of the impugned order since note No. 2 specifically envisages that appeal should be filed within three months before the Appellate Tribunal. He submitted that the applicants have taken the matter in a very casual manner and the delay in filing the appeal was not explained properly. Filing of the appeal in a casual and leisurely way cannot be considered as sufficient cause and every day’s delay is to be explained, and in support of his contention he has referred to the following decisions :–
1. Collector of Central Excise, Vadodara v. Banco Aluminium & Gujarat Aluminium, Baroda -1987 (27) E.L.T. 102.
2. M/s. Patni Brother (P) Ltd., v. Collector of Central Excise, Indore – 1987 (28) E.L.T. 179 (Tri.).
3. Collector of Central Excise v. Rallis India Ltd. -1991 (53) E.L.T. 395 (Tri.).
4. Acto Industries Ltd. v. Collector of Customs.
5. We have carefully considered the rival submissions and perused the records. It is an admitted fact that revision petition was filed by the applicants against the impugned order before the Govt. of India and the Government of India had come to know on 9-9-1992 itself that the appeal was not maintainable as can be seen as per its order dated 9-11-1992. But instead of either dismissing or transferring or returning the papers at the earliest possible time, it dismissed the appeal as not maintainable only on 9-11-1992 and the same was received by the applicants on 8-12-1992. Taking overall facts and circumstances of the case and in view of the peculiar position, the applicants were perusing remedy before the wrong Forum and the matter was pending before the other authority up to a particular point of time and since the order was communicated to the applicants on 8-12-1992, we are of the opinion that delay, if any, upto that period was condonable but the point to be considered in this appeal is whether the applicants were prevented from sufficient cause not to prefer an appeal in the subsequent period on receipt of the order. It is well settled principle that right of appeal is neither a fundamental right nor a natural right but only a statutory right. Statute provides that Tribunal may admit an appeal after expiry of the period if it is satisfied that there was sufficient cause for not presenting it within the said period. It was explained in the affidavit that on receipt of the revision order passed by the Govt. of India, the appellants became alert and on 9-12-1992 itself started proceedings in consulting Advocate and preparing appeal and the appeal papers were duly signed on 27-12-1992 and affirmed on 31-12-1992 and were sent to their Advocate for filing before the Tribunal. So much time consumed for preparing the appeal without valid reason cannot be considered to be a sufficient cause to condone delay in filing the appeal. To condone delay not only there should be a cause but it should be sufficient. Story narrated in the affidavit about consultation and taking draft papers, returning home cannot be considered sufficient cause in our view to condone delay. In fact, in the first affidavit filed by the applicant it was stated that appeal papers were filed before the Tribunal on 31-12-1992 but in the subsequent affidavit it was corrected that appeal papers were sent to their Advocate on 31-12-1992. Detail of the date chart for the subsequent period is not forthcoming and furthermore, it was not substantiated whether the appeal papers were received by the Advocate by registered post or otherwise on 31-12-1992 and further delay has been caused in filing the appeal on 11-1-1993. All these facts clearly show that the matter was processed in a casual manner without displaying alacrity and despatch. The decisions cited by the applicant’s counsel are not applicable to the facts of this case in view of the peculiar circumstances. It is not possible to lay down precisely as to what facts or matters would constitute ‘sufficient cause’, under Section 35B(5) of the Central Excises and Salt Act, 1944. The delay in filing an appeal should not have been for reasons which indicate the party’s negligence in not taking necessary steps which it would have or should have taken. What would be such necessary steps will again depend upon the circumstances of a particular case, but the expression ‘sufficient cause’ cannot be construed too liberally, merely because the party was busy in consulting and preparing the appeal papers. In our view the applicants were not diligent for the subsequent period on receipt of the revision order passed by the Government of India and, accordingly, condonation of delay application filed by the applicants is hereby rejected. Consequently, the stay application and the appeal are also dismissed as barred by time.