STARVISION POWER SYSTEMS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(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 Sec. 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 Sec. 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.