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Judgment
S. Nainar Sundaram, J.—The petitioner had a grievance over the order of the third respondent, dated 18-3-1978, with regard to his decline
to consider the request of the petitioner for eligibility to have their goods assessed at the preferential value. This order of the third respondent was
served on the petitioner on 3-8-1978. As per Section 35 of the Central Excise and Salt Act, 1944 (Act I of 1944), hereinafter referred to as the
Act, prior to its substitution in 1980, an appeal from the above order should be preferred within three months from the date of the order. It is not in
dispute that ""the date of order"" is to receive a wider connotation so as to say that the appeal could be preferred from the date of the service of the
order. But, ""there was no provision for condonation of delay earlier, in contrast to such a provision introduced by the amendment in 1980. The
petitioner sent the appeal as against the order of the third respondent to the second respondent, by post and it was received by the second
respondent on 4-11-1978, obviously out of time. The second respondent by his order, dated 29-12-1978, dismissed the appeal as time-barred.
The petitioner took up the matter by way of revision to the first respondent, and the first respondent upheld the order of the second-respondent
and dismissed the revision. The orders of respondents 1 and 2 are being put in issue in this writ petition.
Mr. K. Jayachandran, learned Counsel for the petitioner, would first contend that the petitioner did send the appeal before the expiry of the
prescribed period by post, and the date of posting should be counted as the date of preferring the appeal, and if so done, there is no question of
bar of limitation. In support of this proposition, he relies on a pronouncement of a Bench of the High Court of Gujart in Narandas Vallabhram
Parmar v. Union of India 1978 ELT 695. In answer Mr. T. Somasundaram, learned Additional Central Government Standing Counsel appearing
for the respondents, would submit that there is no provision either in the Act or in the Rules framed thereunder, which contemplates the preferring
of an appeal of the present nature by post, and further neither the third respondent, the original authority, nor the second respondent, the appellate
authority, indicated that the appeal could be entertained by post and in the said circumstances, the post office could not be treated as the agent of
the appellate authority, so as to say that the date of posting the appeal papers must be deemed to be the date of preferring the appeal. Learned
Additional Central Government Standing Counsel wants to distinguish the pronouncement of the Bench of the High Court of Gujarat in Narandas
Vallabhram Parmar v. Union of India 1978 ELT 695, by pointing out that in that case the original authority intimated the party that if he was
aggrieved by the original decision, he should prefer an appeal to the appellate authority, c/o. a Post Box within three months, and in that context, it
has opined that when the appeal was invited by post, the post office being the agent of the authorities, the appeal could be held to have been
preferred within time from the date of posting. Learned Additional Central Government Standing counsel also draws my attention to a
pronouncement of a single Judge of the High Court of Calcutta in Titaghur Paper Mills Company Ltd. and Anr. v. Union of India and Ors. 1981
ELT 27 (Cal), where the pronouncement of the Bench Of the High Court of Gujarat in Narandas Vallabhram Parmar v. Union of India 1978 ELT
695 was distinguished by pointing out the above feature and where the learned single Judge of the High Court of Calcutta found in the case dealt
with by him that the parties did not place or prove that the authorities had invited appeals by post or by their representation held that the postal
authorities were constituted as their agents.
There is no specific provision in the Act or in the Rules framed under the Act, which lay down that appeals of the present nature could be
entertained by post so that it could be stated that the post office was constituted as an agent of the appellate authority, and for computation of the
period of limitation for preferring the appeal, the entrustment of the appeal papers with the postal authorities should be counted as the date of
preferring of the appeal. In the absence of such a specific provision, it is only the date when actually the appeal reaches the appellate authority that
should be counted as the date of preferring the appeal. Learned Additional Central Government Standing Counsel brings to my notice the
pronouncement of another Bench of the High Court of Gujarat in A. Raman and Co. v. Union of India and Ors. 1981 ELT 592 (Guj) wherein the
view taken is when there is no specific or implied provision under the Act or the Rules framed thereunder, it could not be inferred that the post
office was constituted as an agent in which the appeal could be filed, and when the appeal filed through post office reached late before the
appellate authority, it cannot be held to have been filed within the time limit prescribed therefore .My attention has also been drawn to a
pronouncement of the Supreme Court in F.N. Roy v. Collector of Customs, Calcutta and Ors. 1983 ELT 1296 (SC), where the Supreme, Court
held while dealing with the provisions of the Sea Customs Act that where the appeal was sent by post, only the date of receipt must be taken to be
the date when the appeal was filed. The question may be viewed from a different angle, if the authorities notified the party that the appeal would be
entertained through post and in such a case, there is a room for an argument that the authorities accepted the post office as their agent and the
posting of the appeal would satisfy the requirement of preferring the appeal and the date of posting should be counted as the date of preferring the
appeal. Such is not the case here. Hence, I have to reject the first contention of the learned Counsel for the petitioner.
Mr. K. Jayachandran, learned Counsel for the petitioner, would next contend that even though prior to the amendment, Section 35 of the Act
did not contain a specific provision for condonation of delay, such a power must be implied and the second respondent ought to have exercised his
discretion with regard to condonation of delay. The second respondent is not a Court and it is a well-settled principle that the power of
condonation of delay with regard to preferring of an appeal before an authority like the second respondent, in the absence of a specific provision
conferring such a power, is not a matter of inference or implication, and the provisions of the Limitation Act would not apply to such proceedings.
In N.B. Golangada v. Union of India and Ors. 1978 ELT 61 , a Bench of the High Court of Bombay, squarely dealt with this question and
repelled the contention that the appellate authority like the second respondent is competent to condone the delay in preferring the appeal. While
doing so, it was pointed out that in neither Section 35 nor in any other provision of the Act or the Rules framed thereunder, there is any provision,
which empowers an appellate authority to condone the delay in preferring the appeals. Hence, this contention also fails.
Thirdly, Mr. K. Jayachandran, learned Counsel for the petitioner, would contend that the second respondent in any event ought to have
afforded an opportunity of personal hearing to the petitioner, and in this regard, he complains of violation of principles of natural justice. The
principles of natural justice are not a rigid code, inflexible in all contingencies without reference to the facts and circumstances of the case. When
the appeal itself was time-barred and was liable to be rejected on that ground, there was no question of affording a personal hearing to the
petitioner. Such a view has also been expressed by the Supreme Court in F.N. Roy v. Collector of Customs, Calcutta and Ors. 1983 ELT 1296
(SC)where again the appeal was preferred out of time and it was observed. There is no rule of natural justice that at every stage a person is
entitled to a personal hearing. All the three contentions raised by the learned Counsel for the petitioner stand eschewed. The result is, the writ
petition fails and the same is dismissed, No costs.