ORDER
Shiben K. Dhar, Member (T)
1. This reference application alongwith application of condonation of delay has been filed in Tribunal with reference to Tribunal’s Final Order No. A/92/94-NRB, dated 25-1-1994. The Tribunal in the aforesaid order held that excess weight of Tobacco was on account of addition of chemicals, perfumes and other various substances which are purely temporary and actual weight nearly settled down to the level of weight of the coloured leaves, and therefore set aside the impugned order of Collector (Appeals) and allowed the appeal of the respondent. The question of law set out for reference to the Hon’ble High Court is :-
“Whether the Tribunal was correct in allowing the appeal on a hypothetical assumption that there was no weight gain in view of the fact that pilot experiments conducted earlier did reveal that after allowing normal dryage there did occur some weight gain.”
2. The order dated 25-1-1994 of Tribunal was received by Collector on 16-2-1994 and the reference application was received by the Registry of the Tribunal on 13-5-1994. There has been delay of 28 days, since the reference application was required to be filed within 60 days. The reasons for not filing application within limitation period of 60 days are indicated as unavoidable circumstances. Ld. DR submitted that there has been some delay in filing reference application but conceded that day to day explanation is to be given. He prayed for condonation of delay.
3. Ld. Advocate of Respondents, while pointing out that no reasons were given for condonation of delay, submitted that the reference application was to be filed by Collector himself under Section 35G of Central Excises and Salt Act and this power cannot be delegated to Assistant Collector as has been done in this case. In support of his contention, he cited the case of CCE, Cochin v. Indian Oil Corporation -1985 (20) E.L.T. 368.
4. I have given careful consideration to the submissions made by both sides. In the application of condonation of delay, which is signed by Assistant Collector, the following reasons have been indicated : –
“That the Reference Application against the Tribunal’s Final Order No. A/92/94-NRB, dated 25-01-1994 could not be filed within the prescribed time limit of 60 days on account of unavoidable circumstances.”
No reasons [whatsoever] explaining the delay on day-to-day basis have been indicated. It was held by Hon’ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. (AIR 1962 SC 361) that the expiration of the period of limitation prescribed for making the 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 Court observed that diligence of the party or its bona fides are important consideration for examining the aspect of “sufficient cause”. The appellants have to justify the delay through sufficient cause. Merely saying ‘unavoidable circumstances’ without indicating what are these circumstances which prevented the appellants from filing the application in time would not constitute sufficient cause for the purpose of condonation of delay. Application of condonation of delay is therefore liable to be rejected on this ground alone. It was held by Tribunal in the case of Collector of Customs, Bombay v. Kirloskar Cummins Ltd. 1987 (28) E.L.T. 65 that delay is not condonable which is caused due to negligence or lack of care. The application of condonation of delay was rejected even though some reasons were indicated. In the present case, however, no reasons are indicated except unavoidable circumstances which are known only to the Collector. Tribunal has to know, to arrive at a determination whether circumstances are such as could constitute sufficient cause for condonation of delay, what those circumstances are, and since these have not been disclosed, application of condonation of delay is liable to be rejected on this ground alone.
5. It is also seen that Collector has issued an authorisation authorising Assistant Collector (Review), Allahabad to file Reference Application on his behalf. Assistant Collector, Central Excise, Allahabad therefore has filed the Reference Application. It was held by this Tribunal in the case of CCE, Cochin v. Indian Oil Corporation (supra) :-
“11. Section 35G of the Central Excises and Salt Act, 1944 specifically lays down that it is either the Collector of Central Excise or the other party to the proceedings, who may within sixty days of the date upon which he is served with notice of an order under Section 35G (not being an order relating among other things, to the determination of any question, having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), file an application requiring the Appellate Tribunal to refer to the High Court any question of law arising out of such order.
12. Perusal of this Section shows that before a reference to the High Court, two conditions must be fulfilled. The application should be filed either by the Collector of Central Excise or by the other party within a period of 60 days from the date of the receipt and that that order should not be an order relating among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of the goods for the purposes of assessment.
13. In this case both these conditions have not been fulfilled. Neither the application has been filed by the Collector of Central Excise, nor this is an order which does not relate, among other things, to the determination of any question having a relation to the rate of duty of excise. Nowhere in the Central Excises and Salt Act, 1944 or in the Rules framed thereunder, it has been mentioned that the Assistant Collector would be deemed to be Collector of Central Excise for this purpose. Where the legislature thought it fit, the Collector of Central Excise has been empowered to delegate his power to his subordinate Excise Officer to do or perform an act on his behalf. In Section 35B(2) of the Central Excises and Salt Act, 1944, which relates to filing appeals before the Appellate Tribunal, against the order passed by the Collector (Appeals), the Collector of Central Excise has been empowered to direct any Central Excise Officer subordinate to him to file appeals, but under Section 35G which relates to filing Reference Applications, the Collector of Central Excise has not been empowered to authorise any Excise Officer to file a Reference Application on his behalf. Even the Rules made under the said Act do not empower the Collector to authorise the Assistant Collector of Central Excise to file a Reference Application on his behalf under Section 35G. In the absence of any specific power of delegation it is only the Collector of Central Excise, who is competent to file a Reference Application under Section 35G. In this case, the Reference Application has not been filed by the Collector of Central Excise, but by the Assistant Collector of Central Excise and therefore, this application having not been filed by a proper person is not maintainable in law.”
6. On this ground also the Reference Application is not maintainable. In the result application of Condonation of Delay is dismissed and Reference Application, without going into merits, is also dismissed as non-maintainable.