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Ganeshdas Kayan and Sons Textiles Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Judge
Reported in(1983)LC1354DTri(Delhi)
AppellantGaneshdas Kayan and Sons Textiles
RespondentCollector of Central Excise
Excerpt:
.....pursuant to the order-in-original was sent to the appellants on 19/ 20-5-1981. in such a case the time-limit for filing the appeal ought to be counted from the date of communication of the duty demand. for this, the appellants relied on govt. of india's order-in-revision reported at 1980 elt-786. the appellants argued that the present appeal had been filed as a revision application before the central govt. and had it been disposed of by the central govt., the aforesaid order-in-revision of the govt. would have been binding on the central govt. and their first appeal would accordingly have been held as filed within time. (2) the word used in section 35 is "may" which meant that the time-limit of three months laid down in the section was not rigid and could be extended at the discretion.....
Judgment:
1. In this case, the first appeal of the appellants was rejected by the Central Board of Excise and Customs as time-barred on the ground that it was filed after the period of three months laid down in Section 35 of the Central Excises & Salt Act, 1944, as then existing. The Order-in Original was received by the appellants on 10 4.1981 while their appeal before the Beard had been filed only on 13.7.1981. The appellants do not dispute these dates. Their pleas are three-fold : (1) The first appeal was not time-barred as the demand for duty pursuant to the Order-in-Original was sent to the appellants on 19/ 20-5-1981. In such a case the time-limit for filing the appeal ought to be counted from the date of communication of the duty demand. For this, the appellants relied on Govt. of India's Order-in-Revision reported at 1980 ELT-786. The appellants argued that the present appeal had been filed as a revision application before the Central Govt. and had it been disposed of by the Central Govt., the aforesaid Order-in-Revision of the Govt. would have been binding on the Central Govt. and their first appeal would accordingly have been held as filed within time.

(2) The word used in Section 35 is "may" which meant that the time-limit of three months laid down in the section was not rigid and could be extended at the discretion of the appellate authorities.

(3) No personal hearing was granted by the Board before rejecting the appellants' first appeal. As such the Board's order was bad in law. On a query from the Bench, the appellants were not able to say whether they had asked for a personal hearing in their memorandum of appeal filed before the Board.

2. The Department's representative relied on two High Court judgments reported at 1979 ELT-32 (Andhra Pradesh) and 1979 ELT-651 (Kerala) to say that the time-limit of three months laid down in Section 35 was not extendable. He stated that the Govt. of India had gone beyond the mandate of Section 35 in passing their Order-in-Revision referred to by the appellants. Even on facts, the appellants' case was distinguishable inasmuch as the adjudicating Collector had specified the quantity of fabrics in his order on which the duty was payable. The appellants could have calculated the amount of duty themselves quite easily. As regards the appellants' plea regarding the use of the expression "may" in Section 35, he argued that this expression was in relation to the option given by the section to the parties concerned whether they should file an appeal or not and it did not mean that the time-limit for filing the appeal was left flexible.

3. We have carefully considered the matter. We agree with the Department's representative that there was no provision in Section 35, as it then existed, for relaxing or extending the time-limit of three months for filing the appeal. The section also made it clear that this time limit ran from the date of communication of the decision or order appealed against. As regards the use of expression "may" in the section, the question whether a person should file an appeal or not is a matter of choice of that person. Naturally, no piece of legislation could make it compulsory or say that any person feeling aggrieved "shall" file an appeal. The Department's representative is correct in saying that the expression "may" has been used in Section 35 in this c6ntext and not for leaving the time limit vague or flexible. If the appellants' argument were to be followed, it would mean that an aggrieved person could file an appeal at any time, without there being any limitation of time. In that event, the limitation of three months provided for in the section would become meaningless. Such an interpretation as placed by the appellants is obviously untenable. The appellants are also not correct in saying that the Govt. of India's Order-in-Revision referred to by them would have been binding on the Central Govt. in all subsequent cases. The Order-in-Revision in question was passed by an officer sitting singly and it was quite open to the Govt. to reverse it in some other suitable case either by constituting a Bench or by placing the matter before a more senior officer. In any case, we find that even on facts the position is quite different in the case of the present appellants, The Order-in-Original passed by the Collector left no uncertainty or vagueness so far as the amount of duty payable by the appellants was concerned. The order precisely specified the quantity of fabrics on which the duty or processing surcharge was payable by the appellants. The rate of duty or processing surcharge was a matter of common knowledge, being available in any book on Central Excise Tariff. Even without reference to any book, persons in textile trade, like the appellants, were quite familiar with the rate. As such it was quite a simple matter for the appellants to calculate the amount of duty payable by them on the quantity of fabrics specified in the order. The fact that the (Department calculated the amount and sent it to them five weeks after the Order-in-Original does not give the appellants an extended time limit because it is not the quantification of the amount which the appellants were disputing but the basic issue of durability of the fabrics processed by them and which basic issue was decided in the Order-in-Original. Their appeal to the Board was also filed only against this Order-in-Original and they' wanted a decision from the Board on the basic issue of durability of their fabrics. As regards the appellants' grievance that the Board did not grant them a personal hearing before rejecting their appeal as time-barred, we find nothing on record to show that they had asked for a personal hearing before the Board. In any case, they cannot have a grievance on this score any more because we have now heard them at length and considered all their pleas. As we find no merit in any of their arguments, we hold that their first appeal was correctly rejected as time-barred by the Board.


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