JUDGMENT S.L. Saraf, J.
1. The petitioner is manufacturer of vacuum cleaners. The case of the petitioner is that it manufactures certain items as part of the vacuum cleaners whereas the other parts and accessories known as optional accessories are purchased from the market and so such accessories are never manufactured within the factory premises of the petitioner nor they are cleared from the factory premises as such they are not excisable goods nor the value of such products can be added for assessing the value of the product for the purposes of levying the excise duty. According to the petitioner this position has been upheld by the order of the Central Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal Nos. E/676/94-A & E/1647/94-A, dated 5-2-1996 1996 (83) E.L.T. 334 (Tribunal). According to the petitioner the Tribunal had come to a finding of fact that extra numbers of bags in excess of one supplied along with the machine duly fitted will not be its component parts and they do not form part of the assessable value. The said order was passed for the period August, 1992 to January, 1993.
2. Mr. Sudhir Chandra appearing for the petitioner submits that for the present period also the same principle should be applied and only the product manufactured in the factory premises and cleared be made assessable in terms of the said order of the Tribunal. Counsel for the petitioner submits that unfortunately due to the illness of the Advocate of M/s. Crawford Bayley & Co. of Bombay who was conducting the case, the appeal against the order passed by the Asstt. Collector could not be filed before the Collector (Appeals) within time as prescribed under Section 35 of the Central Excises and Salt Act, 1944. The appeal was filed beyond time as such the Collector (Appeals) refused to entertain the said appeal.
3. Mr. Sudhir Chandra also challenges the order of the Assistant Collector on the ground that the same was passed ex parte and in violation of the principles of natural justice. According to the petitioner, the said order of the Assistant Collector was passed a few days before the passing of the order of the Tribunal as such they had gone in appeal before the Collector (Appeals) but unfortunately in view of the facts stated above the appeal was dismissed on a technical interpretations of Section 35 of the said Act. Section 35 of the Central Excises & Salt Act read as follows :
"35. Appeals to [Commissioner (Appeals)]. -
(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a (Commissioner of Central Excise), may appeal to the [Commissioner of Central Excise (Appeals)] (hereinafter in this Chapter referred to as the [Commissioner (Appeals)] within three months from the date of communication to him of such decision or order.
Provided that [Commissioner (Appeals)] may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period or three months.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner."
4. According to Mr. Sudhir Chandra, his clients were not aware with the provisions of Section 35, moreover, due to the circumstances beyond the control of his clients, their Counsels having fallen ill for considerable length of time the appeal could not be filed. In this connection Counsel for the petitioner relies on a decision of Delhi High Court in Civil Misc. Writ Petition No. 3650 of 1995 (Eureka Forbes Ltd. v. Union of India and Ors.) which under the similar circumstances held that the delay should have been condoned by the authorities and the authorities should have heard the matter on merits. The said decision refers to a Supreme Court decision reported in AIR 1987 SC 1353 - Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. wherein the Supreme Court has been pleased to hold as follows:
"The expression "sufficient cause' employed by the legislature in Section 5 of the Indian Limitation Act, 1963 was held to he adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of the Courts. The principles which a Court is expected to apply for adopting a liberal approach were summarised as follows :
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
5. It was held by the High Court in the said decision that in the absence of any mala fide there was no reason why the principles No. 1 and 2 noted above in Mst. Katiji case could not apply and why the delay ought not to have been condoned and the matter should have been heard on merits.
6. I am in agreement with the said observation of the Delhi High Court and feel that in the interest of justice and when there is a factual finding of fact in favour of the petitioner by the CEGAT on similar facts the same principle should have also apply in the case of making assessment and determining the assessable value of the products of the petitioner. The Collector (Appeals) should have condoned the delay and should have heard the appeals on merit. The Collector (Appeals) has failed to exercise the discretion judicially and not keeping with the principles of natural justice. As such this Court exercising the powers under Article 226 of the Constitution of India quash the order passed by the Collector (Appeals) dated 5th of December, 1996 and set aside the same and the Collector (Appeals) is directed to rehear the matter after giving proper notice to the petitioner to place their case before the Collector (Appeals) in view of the order of CEGAT as stated hereinabove and pass an appropriate order in the matter.
7. Before concluding I would like to refer Section 5 read with Section 29(2) of the Indian Limitation Act. In my view of the matter Section 5 read with Section 29(2) are applicable even in the instant case where there is a time limit prescribed by the special Act. Section 29(2) makes it abundantly clear that Section 5 will be applicable in the present case. Section 35 lays down a period of three months of file an appeal and within a further period of three months on satisfaction of the Commissioner (Appeals). This in my view will not preclude the appellate authority to hear the appeal filed beyond the period of three months if sufficient cause is shown for the delay in filing the appeal. The reading of Section 35 does not show that Section 29(2) and Section 5 of the Limitation Act have been excluded expressly by the provision of the said Act. In that view of the matter also I hold that the Collector (Appeals) has not properly exercised his powers in accordance with law.
8. When the case was called a Junior member appeared for the Excise authorities and he was not willing to argue the case. He was asked to call his senior to argue the matter but nobody turned up. The Court takes a very serious view of the matter that the Excise authorities are negligent in conducting the cases when the same are called for hearing. This order should be sent to the Collector (Customs) to take appropriate steps in the matter.
9. With these observations this petition stands disposed of. There will be no orders as to a costs.