ORDER
S.K. Bhatnagar, Vice President
1. This is a condonation application filed in connection with the reference application submitted in respect of the Tribunal’s order No. A/442/90-NRB dated 17-9-1990.
2. The learned DR stated that the reference application was required to be filed within 60 days of the date of receipt of the order namely 28-10-1990. However it could not be filed within this tune, which expired on 26-12-1990, and was actually filed in the Tribunal on 7-1-1991. Hence he would request for condonation of delay of 12 days.
3. In this connection he would like to draw attention to the facts mentioned in the COD application filed by the Collector, Indore.
4. He would like to emphasise that the matter in this case was referred to the Commissioner, Review and Subsequently the Commissioner advised the Collector to file the application and the telex communication was received only on 31-12-1990 and soon thereafter the reference application was filed.
5. He would also like to submit that the Collector was under the belief that the order of the CEGAT will be contested by the Commissioner directly. Hence the delay in applying to the CEGAT.
6. It was his submission that the delay is neither wilful nor wanton and deserves to be condoned. In this connection he would like to emphasise that the Tribunal itself as also the Courts have had occasion to observe in various cases that a liberal and practical approach is required to be adopted in such cases. He would like to cite in this connection the Tribunal’s order reported in 1986 (26) ELT 405 – Tribunal.
7. The learned Counsel for the respondent opposed the request on the ground that the department has not been able to show sufficient cause. He stated that the departmental officers are expected to know the law and procedure and ensure timely processing and filing of the application.
8. Furthermore only a small amount of Rs. 1556/- was involved; and carelessness or negligence does not constitute sufficient cause.
9. Moreover the Tribunal’s order cited by the learned DR was distinguishable. In this case the appeals had been despatched within the normal time, indeed five days ahead of the date of expiry of the normal period of limitation by the Registered post but were received later than the due date due to postal delay.
10. It was in this context that the Tribunal had made the observations relied upon. Such was not the case in the present instant. Hence this case does not help the cause of the department. And the department was required to explain every day’s delay.
11. The learned DR stated that he would also like to mention a case reported in 1987 (28) ELT 185 SC in which it was observed by the Hon’ble Supreme Court that the doctrine or expression of “everyday’s delay must be explained” should be applied in a rational commonsence and pragmatic manner.
12. He would also like to cite the order of the Karnataka High Court reported in 1986 (25) ELT 657 in this connection.
13. I have considered the submissions of both the sides. I find that really a very strange ground has been advanced in this case inasmuch as the Collector has stated that “the undersigned was under the belief that the order of the CEGAT would be contested directly by the Commissioner, Review. Hence the delay in applying to the Hon’ble CEGAT”.
14. However we note that Section 35G reads as under :
“The Collector of Central Excise or the other party may, within sixty days of the date upon which he is served with a notice of an order under Section 35C … require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and…”.
The Section clearly lays down the responsibility of filing the reference application on the Collector of Central Excise, and this Section has nothing to do with the Commissioner, Review or the Board and if a reference was required to be made by the Collector to the Commissioner or the Board that was an internal matter of the administration. Hence once a lengthy course was deliberately chosen for whatever reasons, the officers were required to keep in mind the prescribed time limit and process the papers with due care and expedition so that the application could be filed within the prescribed time in the normal course.
15. This has however not been done and the Collector’s so-called ‘belief in the face of a clear provision of law cannot be considered as a sufficient cause.
16. In the above circumstances I consider that the learned Counsel’s pleadings have strong force and the cases cited by the learned DR do not advance the cause of the Department.
17. Hence the application is dismissed.
18. Consequentially the reference application is also dismissed as time-barred.