1989 (7) TMI 131 - AT - Central Excise

Appeal Dismissed: Improper Authorization and Time-Barred; Delay Condonation Denied; Dissent Overruled on Limitation Start.

The Tribunal dismissed the appeal as not maintainable due to improper authorization under Section 35B(2) of the Central Excises & Salt Act and found it ... Appeal - Transferred proceedings - Limitation - Condonation of delay Issues Involved:1. Delay in filing the appeal.2. Condonation of delay.3. Maintainability of the appeal due to proper authorization.Detailed Analysis:1. Delay in Filing the Appeal:The appeal was filed by the department against the order-in-appeal dated 18-3-1982 passed by the Appellate Collector, Customs & Central Excise, Calcutta. The appeal was received in the Registry on 23-12-1982 without any application for condonation of delay. The impugned order was communicated to the authorities on 12/13-4-1982, and the Central Government called for the record of the proceedings within the one-year limitation period as per Section 36(2) of the Central Excises & Salt Act. However, the Central Excises & Salt Act was amended by the Finance (No. 2) Act of 1980, introducing a new Chapter VIA, which included provisions for filing an appeal before the Tribunal within three months from the date of communication of the impugned order, as per Section 35B of the Act. The new provisions came into force on 11th October 1982. The Customs, Central Excise & Gold (Control) Removal of Difficulties Order, 1982 extended the period for filing an appeal to six months from the date of communication of the order for orders passed before 11th October 1982.2. Condonation of Delay:The department filed an application for condonation of delay, supported by an affidavit from the Assistant Collector of Central Excise, explaining that the delay was due to the transition from the old revision system to the new appeal system under Section 35B. The delay was attributed to the time taken for internal processing and preparation of the appeal. The Tribunal considered the application and the arguments presented by both parties. The Departmental Representative argued that the limitation period should start from 11-10-1982, the date when the right of appeal was conferred, making the appeal within the three-month period. Alternatively, it was argued that the six-month period provided by the Removal of Difficulties Order should apply, and the delay should be condoned based on the principles established by the Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Katiji.3. Maintainability of the Appeal Due to Proper Authorization:The respondent's counsel argued that the appeal was not maintainable because there was no proper and legal authorization by the Collector as required under sub-section (2) of Section 35B of the Act. The authorization on record was of a general nature and did not specifically authorize the filing of the present appeal. The Tribunal reviewed the authorization and found that it did not meet the requirements of sub-section (2) of Section 35B, which mandates a specific direction to file an appeal in a particular matter. The Tribunal referenced a similar case, Collector of Central Excise, Calcutta v. Shalimar Paints Ltd., where a general authorization was deemed insufficient.Conclusion:The Tribunal dismissed the appeal as not maintainable due to the lack of proper authorization and also found it to be barred by time. The majority opinion held that the limitation period should be calculated from the date of communication of the order, and the appeal was filed beyond the six-month period provided by the Removal of Difficulties Order. The delay was not sufficiently explained, and the application for condonation of delay was dismissed. A separate opinion by one member suggested that the limitation period should start from 11-10-1982, but this view did not prevail.