Starvision Power Systems vs Commissioner Of Central Excise
2004 Latest Caselaw 152 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This writ petition has been filed by the petitioner under Articles 226 and 227 of the Constitution seeking the quashing of the final order No. 435/02B dated 9.10.2002 passed by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi. By virtue of the impugned order dated 9.10.2002, the petitioner's appeal as well as the condensation of delay application in filing the said appeal before the said Tribunal have been rejected.

2. On facts the Tribunal held that the applicant had failed to show that there was sufficient cause for not filing the appeal within the period of limitation as provided under the Central Excise Act, 1944. The appeal under Section 35B to the Appellate Tribunal is to be filed within three months from the date on which the order sought to be appealed against is to be communicated to the party preferring the appeal. Sub-section (5) of Section 35B provides that the Appellate Tribunal may admit an appeal after the expiry of the three months' period if it is satisfied that there was sufficient cause for not presenting it within that period. Thus, it is clear that whether there was sufficient cause or not for condoning the delay in filing the appeal presented to the Appellate Tribunal is to be considered by the Appellate Tribunal and the delay may be condoned only if it is so satisfied. The satisfaction is of the Appellate Tribunal and this Court under Article 226 or 227 of the Constitution cannot substitute its satisfaction in place of that of the Appellate Tribunal.

3. The facts of the case are that by an order dated 14.3.2000 the Commissioner (Appeals) rejected the appeal of the petitioner. As a consequence of the rejection of the appeal the petitioner became liable to pay duty that was demanded by it. In fact, on April, 2000 the petitioner started paying the duty demanded in Installments. The Installments continued till August, 2000. The petitioner had not challenged the order of the Commissioner (Appeals) dated 14.3.2000 on the ground that it was so advised by its consultants/legal advisers. The learned counsel appearing for the petitioner submitted that the appeal had not been filed as the petitioner had been informed that the filing of an appeal against the order dated 14.3.2000 would be an exercise in futility. Be that as it may, the fact of the matter is that no appeal was filed by the petitioner against the order of the Commissioner (Appeals) dated 14.3.2000 and the same was accepted inasmuch as the duty demanded was also thereafter paid. Subsequently, it so happened that on 21.3.2001 a larger Bench comprising of five members of the Tribunal in the case of M/s Luminous Electronics (P) Ltd reversed its earlier decision on the issue of classification on which the order of the Commissioner (Appeals) dated 14.3.2000 was based and came to a decision which would have inured to the benefit of the petitioner. The learned counsel for the petitioner submits that the judgment of the larger Bench was also upheld by the Supreme Court.

4. In view of the orders passed by the larger Bench of the Appellate Tribunal the petitioner was advised to move an appropriate refund application for refund of the duty paid by it pursuant to the order of the Commissioner (Appeals) dated 14.3.2000. Such refund application was made on 23.4.2001. The refund claim was rejected on 26.3.2002 holding, inter alia, that the order of the Commissioner (Appeals) dated 14.3.2000 was applicable to the petitioner and no refund could be granted. Thereafter, the petitioner filed an appeal against the rejection of the refund claim and the same was also dismissed by the Commissioner (Appeals) on 25.6.2002. After the dismissal of the appeal qua the question of refund a demand notice was served on the petitioner for deposit of interest.

5. In these circumstances, the petitioner filed a writ petition being CWP 4991/2002 wherein the petitioner submitted that owing to various orders passed by the Tribunal on the question of classification of the product manufactured by the petitioner, the petitioner had "somehow" failed to challenge the order passed by the Commissioner (Appeals) dated 14.3.2000. In that writ petition which came up for hearing before this Court on 19.8.2002, the petitioner had specifically prayed that the Tribunal be directed to condone the delay in filing the appeal against the order dated 14.3.2000. With regard to this, a Division Bench of this Court specifically observed that it would not be proper for this Court to issue any such direction to the Tribunal. In this view the writ petition was dismissed as withdrawn as recorded in the order dated 19.8.2002 with the following observations:-

"We feel that it will not be proper for this Court to issue any such direction to the Tribunal. We are confident that while taking a final decision on Petitioner's application for condensation of delay, the Tribunal will keep in mind the surrounding circumstances in which the Petitioner is placed today.

At this stage learned counsel for the Petitioner submits that if the operation of the impugned demand notice is not stayed for some time, the whole purpose of filing the appeal would get defeated. Having regard to the peculiar facts of the case, while dismissing the Petition as withdrawn, we direct that if the petitioner moves the Tribunal within two weeks from today, the respondents shall not take any coercive steps for recovery of the interest, being demanded from the Petitioner Under Section 11AA of the Central Excise Act, 1944, till the Tribunal takes a final decision on Petitioner's application for condensation delay and/or in their application for stay of demand."

6. It is in these circumstances that the petitioner's condensation for delay application and the appeal were taken up for hearing by the Appellate Tribunal and disposed of by the impugned order dated 9.10.2002. After examining the facts and circumstances in detail the Tribunal has come to the conclusion that the petitioner had not been able to show that there was sufficient cause in not filing the appeal within the period of limitation and, therefore, on facts the Appellate Tribunal rejected the application for condensation of delay and, consequently, the petitioner's appeal against the order of the Commissioner (Appeals) dated 14.3.2000. The learned counsel appearing on behalf of the respondent submitted that in the circumstances such as these, a petition under Article 226 and 227 of the Constitution would not be maintainable. We are in agreement with this submission. In a writ petition the Court is not so much concerned with the decision as it is concerned with the decision making process. No arbitrariness has been pointed out. There is no allegation of violation of principles of natural justice. In exercise of this extraordinary jurisdiction, this Court does not sit as a Court of appeal and it is not open to us to examine the facts and substitute our views based thereon in place of the views taken by the Appellate Tribunal. As indicated earlier, it is for the Tribunal to be satisfied that there was sufficient cause explaining away the delay in filing the appeal. These are well settled principles. In Shanti Prasad Gupta v. Deputy Director of Consolidation, Camp at Meerut and Ors., 1981 (Supp) SCC 73, the Supreme Court held that "whether or not there is sufficient cause for condensation of delay, is a question of fact." It further held that when an order is made by a lower court in exercise of its discretion allowing or refusing an application to extend time, it cannot be interfered with in revision, unless the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence. The Tribunal has considered all the facts and upon such consideration has come to a conclusion. Unless the conclusions or findings of the Tribunal are shown to be perverse or the order impugned suffers from a fatal jurisdictional error, interference under Article 226 and/or 227 is not warranted. No such perversity or jurisdictional error has been pointed out in this case.

7. There is another aspect of the matter. The order dated 14.3.2000 has attained finality. In fact, it attained finality because the petitioner consciously did not file any appeal. The petitioner cannot be permitted to re-agitate the issue merely because in some other matter the larger bench took a different view. When the larger bench decision came, the order dated 14.3.2000 had already become final.

8. In view of the aforesaid discussion, it would not be proper for us to interfere with the order passed by the Appellate Tribunal. Such a petition would not be maintainable and the same is dismissed.