Skip to content


Jhabboo Lal Kesara Rolling Mills Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petition No. 2824 of 1975
Judge
Reported in1985(19)ELT367(All)
ActsCentral Excises Act, 1944 - Sections 35 and 36; Limitation Act, 1963 - Sections 5; ;Central Excise Rules, 1944 - Rule 226
AppellantJhabboo Lal Kesara Rolling Mills
RespondentUnion of India (Uoi) and ors.
Advocates:A.P. Mathur, Adv.
DispositionPetition dismissed
Excerpt:
.....taking the view that the appeal was barred by limitation and that in any case, the revisional authority should have disposed of the revision on merits of the case. the copy of the order dated september 12, 1972 was received by the petitioner on september 13, 1972, as per the recital in paragraph 2 of the appellant order wherein it has been mentioned that the petitioner admitted before the appellate collector that he had received the order on september 13, 1972. the appeal could, therefore, have been filed, at best, within three months from september 13, 1972. it is not in dispute that an appeal dated december 14, 1972 was filed by the petitioner. if the petitioner did not ask for a decision on merits of the adjudication order passed by the appellate collector from the revisional..........and salt act, 1944. the appeal was dated december 14, 1972 but was received in the office of the appellate collector on december, 16, 1972. the appellate collector held that the appeal was barred by limitation under section 35 of the act. he also rejected the prayer made by the petitioner for condonation of delay under section 5 of the limitation act on the ground that the provisions of the limitation act, 1963 were inapplicable to proceedings under the central excises and salt act, 1944 which was a special act. the petitioner assailed the decision in revision under section 36 of the act. the revision was dismissed. in the revisional order (annexure f to the petition) it has been mentioned that the argument was that the petitioner could not file the appeal within time as the proprietor.....
Judgment:

V.K. Mehrotra, J.

1. M/s. Jhabboo Lal Kasera Rolling Mills, Mirzapur, the petitioner, felt aggrieved by an order dated September 12, 1972 , passed by the Deputy Collector, Central Excise, Allahabad, after considering the explanation offered by the petitioner on July 17, 1972 to a notice dated July 1, 1972, confiscating 204 and 120 billets and in lieu thereof an option to redeem the same on payment of Rs. 6,000/ as fine. The finding was that there was breach of Rule 226 of the Central Excise Rules, 1944. A personal penalty of Rs. 750/- was also imposed. This order was sent to the petitioner by registered post acknowledgement due as is clear from the endorsement at the foot of the copy of the order which has been filed as Annexure C to the writ petition. The petitioner filed an appeal against the order under Section 35 of the Central Excises and Salt Act, 1944. The appeal was dated December 14, 1972 but was received in the office of the Appellate Collector on December, 16, 1972. The Appellate Collector held that the appeal was barred by limitation under Section 35 of the Act. He also rejected the prayer made by the petitioner for condonation of delay under Section 5 of the Limitation Act on the ground that the provisions of the Limitation Act, 1963 were inapplicable to proceedings under the Central Excises and Salt Act, 1944 which was a Special Act. The petitioner assailed the decision in revision under Section 36 of the Act. The revision was dismissed. In the revisional order (Annexure F to the petition) it has been mentioned that the argument was that the petitioner could not file the appeal within time as the proprietor was laid up with chronic dysentery. Further, that the plea was not convincing. Then, the present writ petition was filed by the petitioner for redress in this Court.

2. Sri A.P. Mathur, appearing for the petitioner, urged that the appellate as well as the revisional authority were in error in taking the view that the appeal was barred by limitation and that in any case, the revisional authority should have disposed of the revision on merits of the case.

3. Section 35 of the Act, as it then stood, provided that a person deeming himself aggrieved by any decision passed by a Central Excise Officer, may, within three months from the date of such decision, appeal therefor to an officer designated by the Central Government. In the order passed by the Deputy Collector, it was mentioned that a person deeming himself aggrieved by the order may appeal against it to the Appellate Collector of Central Excise C/o., The Collector of Central Excise, Central Revenues Building, New Delhi and the appeal must be filed within 3 months from the date of personal service or receipt by post by the party. The copy of the order dated September 12, 1972 was received by the petitioner on September 13, 1972, as per the recital in paragraph 2 of the appellant order wherein it has been mentioned that the petitioner admitted before the Appellate Collector that he had received the order on September 13, 1972. The appeal could, therefore, have been filed, at best, within three months from September 13, 1972. It is not in dispute that an appeal dated December 14, 1972 was filed by the petitioner. It is clear that the appeal was not presented before the Appellate Authority within three months of September 13,1972 nor was it despatched by post either, before expiry of three months from the date of the order or the date on which the petitioner received the order under appeal. The appeal was apparently barred by three days under the rule of limitation. The Appellate Authority was not in error in treating it to be barred by time.

4. Even the petitioner felt that the appeal had been presented beyond limitation for he made prayer for condonation of 3 days' delay before the Appellate Collector by making an application under Section 5 of the Limitation Act, 1963. Further, the petitioner pressed for relief before the Revisional Authority only on the ground that the Appellate Authority ought to has condoned the delay in filing of the appeal. There is nothing in the writ petition to suggest that any other ground was urged by the petitioner before the Revisional Authority. When we come to the revisional order we find that the explanation for delay which was offered on behalf of the petitioner before it was not accepted by the Revisional Authority on merits. We are unable, therefore, to find any apparent error in the order passed by the Revisional Authority either. If the petitioner did not ask for a decision on merits of the adjudication order passed by the Appellate Collector from the Revisional Authority it is not open to the petitioner to accuse it for its failure to have done so.

5. Shri Mathur has relied upon the decision of the Gujarat High Court in Narandas Vallabhram Parmar and Anr. v. The Union of India and Ors. (1978 Excise Law Times 695) in support of the plea that the appeal having been sent by registered post to the Appellate Authority at the correct postal address, the fact that it was received beyond the period of limitation, would not render it barred by limitation. There is no difficulty in accepting the principle which commended itself to the learned Judges of the Gujarat High Court in this case. In fact, the principle was accepted by a Full Bench of this Court in Bhikha Lal and Ors. v. Munna Lal (1974 A.L.J. 470) but the principle will only apply where it is found that the appeal had been despatched to the Appellate Authority prior to the expiry of the period of limitation. In the case before the Gujarat High Court the limitation was to expire on March 2, 1971 while the memorandum of appeal had been posted by registered post to the Collector on March 1, 1971.

6 In conclusion, we find that the decision recorded by the Appellate and the Revisional Authorities under the Act does not suffer by any apparent error of law. We find ourselves unable to agree with the submission of Shri Mathur that on the facts found by the Appellate Collector the decision recorded by him suffer from manifest error of law so as to persuade us to interfere with it in the present proceedings.

7. The petition fails and is dismissed but we leave the parties to bear thier own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //