Kerala State Electricity Board vs Collector of Central Excise (Appeals)

AR. Lakshmanan, J.—By consent of both parties, the main writ petition itself is taken up for final disposal.

The above writ petition has been filed by the petitioner to call for the records of the respondent in his proceedings in Appeal Nos. 7 and 8/88

(C), dated 29.1.1988, to quash the same and consequently direct the respondents to dispose of the petitioner''s appeal Nos.5 and 6/88(C) on

merits.

I have heard Mr. Sriram Panchu learned Counsel appearing for the petitioner and Mr. Jayachandran, learned Additional Central Government

Standing Counsel appearing for the respondent.

It is stated by the Learned Counsel appearing for the petitioner that two appeals were filed on 11.1.1988, that in respect of the appeal against

the order dated 4.8.1987 there was a delay of 51 days, that in respect of the appeal against the order dated 7.9.1987 there was a delay of 22

days in filing the appeals, that along with the appeals the Board preferred miscellaneous petitions to condone the delay, that the orders of the

Assistant Collectors were based on the order dated 17.11.1986 of the Collector of Central Excise which was under appeal to the CEGAT, that

the CEGAT had passed an order of stay and heard final arguments in the appeal on 7.1.1988, that it was submitted in the said petition that the

Board was under the impression that since there was stay of proceedings and since the Tribunal was seized of the matter no appeal need be filed

against the said orders dated 4.9.1987 (sic 4.8.1987?) and 7.9.1987 of the respective Assistant Collectors, that it was further mentioned that the

Board has been advised to file an appeal by way of prudence and abundant caution, that it was therefore prayed that the delay be condoned, that

by order dated 29.1.1988 in Appeal Nos. 7 and 8 of 1988(C) the respondent had dismissed the two appeals filed against the order dated

7.9.1987 of the Assistant Collector of Central Excise, Trichur and the order dated 4.8.1987 of the Assistant Collector of Central Excise,

Kottayam on the ground that there was no sufficient cause to condone the delay, that by order dated 1.2.1988 the Tribunal had allowed the appeal

filed by the Board against the order in original appeal No. 101 of 1986 dated 17.11.1986 of the Collector of Central Excise, Cochin, that on

merits the issue has therefore been decided in favour of the Board, and that notwithstanding the decision of the Tribunal the said Assistant

Collectors have written to the Board stating that since the appeals has been dismissed by the respondent on account of the delay the Board was

liable to pay the duty demanded in the respective orders of the Assistant Collectors.

I have gone through the order impugned in this writ petition and I am of the view that the respondent has materially erred in stating that the

period of delay in respect of the appeal against the order dated 4.8.1987 was five months. In fact the delay was only 51 days. By virtue of the

order dated 1.2.1988 of the CEGAT the question on merits has been resolved in favour of the petitioner Board and it has been held that the Board

is not liable to duty as the manufacturer of the poles. The orders of the Assistant Collectors of Trichur and Kottayam have therefore no substance

on merits any more. By virtue of the fact that the appeals against these orders has been dismissed solely on the ground of delay in presenting the

appeals there is every possibility that the officers will proceed against the Board even though there is no legal basis for the demand made by them. I

am of the view that the respondent by his order dealt with the matter cursorily and has failed to apply the principles and guidelines relevant in

disposing of an application for condonation of delay. I am satisfied with the reasons given by the petitioner in the affidavit filed in support of the

above writ petition to condone the delay in preferring the two appeals in question. In fact, the respondent has not even mentioned as to why he

was of the opinion that sufficient cause had not been shown.

In the result, the impugned order dated 29.1.1988 is quashed and the delay in preferring the appeals by the petitioner is condoned. The

respondent is directed to consider and dispose of the petitioner''s appeal Nos. 5 and 6/88(C) on merits after affording reasonable opportunity to

both parties within a period of three months from the date of receipt of a copy of this order. No costs.