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Jhaboolal Kasera Rolling Mills Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1986)(24)ELT128TriDel
AppellantJhaboolal Kasera Rolling Mills
RespondentCollector of Central Excise
Excerpt:
.....as enumerated in the petition.2. the appeal arose out of an order dated 3-5-1983 of the collector (appeals), central excise, new delhi. under the said order he had dismissed the appeal against the order dated 7-5-1981 of the assistant collector, central excise, mirzapur. the ground for dismissal was that the appeal had not been preferred within the time prescribed therefore in the act. under order dated 17-4-1984 this tribunal had confirmed the order of the collector (appeals) upholding his finding that the appeal to him i.e., collector (appeals), had not been preferred within time prescribed therefore. this was on the basis that while the order of the assistant collector had been received by the appellant on 12-5-1981, the appeal against the same had been received in the office of the.....
Judgment:
1. This application under Section 35G(1) of the Central Excises and Salt Act is by the appellant in Appeal No. E-1 887/83-NRB for making a reference, to the Hon'ble High Court at Allahabad, of various questions of law as enumerated in the petition.

2. The appeal arose out of an order dated 3-5-1983 of the Collector (Appeals), Central Excise, New Delhi. Under the said order he had dismissed the appeal against the order dated 7-5-1981 of the Assistant Collector, Central Excise, Mirzapur. The ground for dismissal was that the appeal had not been preferred within the time prescribed therefore in the Act. Under order dated 17-4-1984 this Tribunal had confirmed the order of the Collector (Appeals) upholding his finding that the appeal to him i.e., Collector (Appeals), had not been preferred within time prescribed therefore. This was on the basis that while the order of the Assistant Collector had been received by the appellant on 12-5-1981, the appeal against the same had been received in the office of the Collector (Appeals), through post, on 14-8-1981. The contention for the appellant had been that the letter containing the appeal had been handed-over to the pest office, for transmission by Regd. post, on 12-8-1981 and the appeal must be therefore deemed to have been presented on 12-8-1981 though it may have reached the office of the Collector (Appeals) on 14-8-1981. This contention had been rejected following an earlier judgment of this Tribunal as reported in Vikrant Tyres Ltd. v. Collector of Central Excise, Bangalore-(1983 ECR 2105), which judgment had taken into consideration various decisions of the several High Courts on this question.

3. We have heard Shri T. S. Bajpeyi, Advocate, in support of the application and Shri Rakesh Bhatia, Senior Departmental Representative for the respondent.

4. Shri Bajpeyi, in his submissions, referred to the jugdment of the Allahabad High Court in the case of Jhaboolal Kasera Rolling Mills v.Union of India 1985 (19) E.L.T. 367. He pointed out that in the said judgment the Allahabad High Court had approved of the ratio of the decision of the Gujarat High Court in Narayandas Vallabh Ram Parmor and Anr. v. Union of India (1978 E.L.T. 695), as accepted by the full Bench of the Allahabad High Court also subsequently in Bhikhalal and Ors. v.Munnalal (1974 ALJ 470), to the effect that it would be the date of delivery to the post office for further transmission that would be the date of filing the appeal and not the date of receipt in the office of the appellate authority. Shri Bajpeyi contended that in view of this decision, there is a question of law to be referred to the Hon'ble High Court at Allahabad. Therefore, though in the application various questions are referred to as questions of law arising out of the order of this Tribunal, his arguments were confined to the question as to what would be the date of presentation of the appeal when the appeal is sent through post i.e., whether the date of posting or the date of receipt. Shri Bhatia contended that no such question of law need be referred to the High Court.

5. We have carefully considered the submissions of both sides and the authorities that would be relevant on this matter. We find that the following decisions of the several High Courts are to the effect that it is the date of receipt that would be the date of filing and not the date of posting. They are Titaghur Paper Mills Co. Ltd. v. Union of India (1981 E.L.T. 27 Calcutta) ; A Raman & Co. v. Union of India (1981 E.L.T. 592 Gujarat); Gobinda Chowdhry v. Commissioner, Income-tax (40 ITR 93 Orissa); Shanta Baldevrai v. Commissioner, Income-tax (46 ITR 272) and Aligarh District Wholesale Cloth Dealers' Syndicate v.Commissioner of Income-tax (40 ITR 481). Of these the first two decisions are under the Central Excises and Salt Act and other three under the Income-tax Act.

6. The decisions to the contrary which hold that it would be the date of posting that would be the date of filing and not the date of receipt are Narayandas Vallabh Ram Parmar and Anr. v. Union of India 1978 E.L.T. 695 Gujarat. Bhikhalal and Ors. v. Munna Lal (1974 ALJ 470) (a judgment of the Allahabad High Court as mentioned in 1985 (19) E.L.T.367 Allahabad, but in the absence of the reported decision it is not known under which Act these proceedings arose) and Jhaboolal Kasera Rolling Mills v. Union of India 1985 (19) E.L.T. 367. It is of interest to note that the party in the last mentioned decision was the present applicant itself.

7. It is thus seen that there is no consensus between the several High Courts on this question as to when an appeal is sent by post it would be the date of posting or the date of receipt that is to be considered as the date of filing. In such circumstances Section 35H of the Central Excises and Salt Act would contemplate a reference being made on the question of law direct to the Supreme Court. But we have found that there is a direct decision of the Supreme Court itself on this question of law. It is reported in F. N. Roy v. Collector of Customs, Calcutta and Ors. (1983 E.L.T. 1296 SC). Paragraphs 34 and 35 of the said judgment are as follows : "Para 34.-It was then stated that the petitioner had not been given personal hearing of the appeal that he preferred to the Central Board of Revenue and the application in revision to the Government.

But there is no rule of natural justice that at every stage a person is entitled to a personal hearing. Furthermore, the appeal was out of time. The memorandum of appeal to the Central Board of Revenue was posted on 4th May, 1954. The time to file the appeal, however, expired on 1st May, 1954, so that even if the date of the posting is taken as the date of the appeal the petitioner was out of time.

Para 35.-The petitioner states that he received the order of confiscation on 3rd February, 1954. Even so, on 4th May, 1954, he would not be within time. The memorandum of appeal however was received by the Central Board of Revenue on 6th May, 1954. That must be taken to be the date when the appeal was filed, and that being so the appeal must be taken to have been filed clearly out of time. The petitioner stated that the Customs authorities wrongfully and maliciously procured his arrest on 1st May, 1954, and he obtained his release on 2nd May, 1954." 8. The said proceedings arose under the Sea Customs Act, 1878. Section 188 of the said Act, relating to appeals, reads as follows : "Section 188.-Any person deeming himself aggrieved by any decision or order passed by an officer of Customs under this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs-authority, or in such cases as [the Central Government] directs, to any officer of Customs not inferior in rank to a Customs-collector and empowered in that behalf by name or in virtue of his office by [the Central Government].

Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against: Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order. Every order passed in appeal under this section shall, subject to the power of revision conferred by Section 191, be final.

9. It is seen that the provisions of the said Section 188 are similar to the provisions of Section 35 of the Central Excises and Salt Act.

Thus there is a direct decision of the Supreme Court that with reference to provisions as contained in Section 35 of the Central Excises and Salt Act where there is no specific provision for preferring the appeal by post it would be the date of actual receipt in the office of the Appellate authority that would be the date of filing of the appeal and not the date of presentation to the post office of the envelope containing the appeal for onward transmission.

10. Since, therefore, we find that the question of law which is required to be referred to the Hon'ble High Court at Allahabad has already been answered by the Supreme Court, and the judgment of this Tribunal dated 17-4-84 is in accordance with the ratio laid down by the Supreme Court, there are no grounds to make any reference to the High Court as requested by the petitioner.


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