2004 (3) TMI 545 - AT - Central Excise

Municipal Corporation's Delayed Appeal Dismissed due to Procedural Errors and 75-Day Delay

The Tribunal dismissed the Condonation of Delay (COD) application and the appeal filed by a Municipal Corporation due to a 75-day delay in filing the ... Appeal - Limitation - Delay in filing, condonation of - Appeal by Department, filing of Issues:Delay in filing the appeal before the Tribunal, Condonation of delay application, Authority to sign the memo of appeal.Delay in filing the appeal before the Tribunal:The appellant, a Municipal Corporation, filed a Condonation of Delay (COD) application seeking condonation of a 75-day delay in filing the appeal before the Tribunal. The Superintending Engineer of the Corporation explained the delay in an affidavit, attributing it to the Counsel's lack of awareness of the limitation period under Section 35B for filing the appeal. However, the papers were sent to the Counsel only after the expiry of the limitation period. The Engineer mentioned erroneous advice from the earlier Counsel regarding the filing period and ignorance of the appropriate format as reasons for the delay. The Tribunal found these explanations unsatisfactory and noted the absence of the Counsel's affidavit or the advice provided, concluding that insufficient grounds were presented for condoning the delay.Condonation of delay application:The Tribunal emphasized that the delay of 75 days in filing the appeal was not justified by the reasons provided in the Engineer's affidavit. Despite the Engineer's disclosure of bona fide delay due to erroneous advice and ignorance, the Tribunal held that these reasons did not warrant condonation of the delay. Additionally, the discrepancy in the appeal documentation, where the memo of appeal was signed by the Superintending Engineer instead of the authorized Assistant Commissioner, was highlighted. Although an office order authorized both officers to sign appeals on behalf of the Corporation, the Tribunal clarified that only one officer could sign the memo of appeal. As the Assistant Commissioner did not sign the memo, the appeal documentation was deemed defective.Authority to sign the memo of appeal:The Tribunal pointed out that the Superintending Engineer's signature on the memo of appeal, instead of the Assistant Commissioner's, raised a procedural issue. While an office order authorized both officers to sign appeals, the Tribunal clarified that only one officer could sign a particular appeal. Therefore, the failure of the Assistant Commissioner to sign the memo rendered the appeal documentation defective. Consequently, the Tribunal dismissed the COD application and the appeal as time-barred due to the delay in filing and the procedural irregularity in the signing of the memo of appeal.