2013 (11) TMI 1622 - HC - Central Excise

Tribunal decision set aside in revenue appeal on Excise Duty refund claim

Commissioner of Customs & Central Excise Versus Emco Wires

The High Court set aside the Tribunal's decision denying condonation of delay in an appeal by the revenue regarding a refund claim on Central Excise Duty. ... - Issues involved:The appeal by the revenue challenging the final order passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) under Section 35G of the Central Excise Act, 1944, regarding condonation of delay in filing the appeal.Condonation of Delay Issue:The assessee-respondents filed a refund claim on Central Excise Duty for certain months of the year 2005 and 2006 under Notification No. 56/2002-C.E. The revenue challenged the order-in-appeal before the CESTAT, claiming the appeal was filed within the period of limitation of 90 days provided by Section 35B(3) of the Act. However, the Tribunal found deficiencies in the applications seeking condonation of delay, emphasizing the need for a proper affidavit as per Order XIX of the Code of Civil Procedure. The Tribunal held that the affidavit did not verify the facts based on knowledge derived from the record or personal knowledge, thus failing to satisfy the requirements of a proper affidavit. The Tribunal emphasized that condonation of delay is not a matter of right but a matter of discretion, to be exercised judiciously with sufficient cause for delay. The Tribunal found no sufficient cause for the delay in filing the appeal, leading to the dismissal of the application seeking condonation of delay.Judgment and Decision:The High Court acknowledged the liberal approach towards condonation of delay in law. While recognizing the revenue's initial lack of knowledge and procedural lapses, the Court opined that the Tribunal should have permitted the filing of a proper affidavit after allowing the application seeking condonation of delay. The Court noted the casual approach of the Revenue but also considered the issue could be decided on merit involving revenue. Consequently, the Court set aside the Tribunal's judgment, burdening the Revenue with costs of Rs. 10,000 to be paid to the assessee before further proceedings. The Revenue was directed to file a proper affidavit within six weeks as per the requirement of the law. The Court emphasized the importance of a proper affidavit, citing a judgment of the Supreme Court in A.K.K. Nambiar v. Union of India and Anr. The appeal was disposed of accordingly.