2013 (12) TMI 346 - AT - Central Excise

Condonation of delay granted for filing appeals under Central Excise Act

The Tribunal granted condonation of delay in filing appeals under Section 35B(3) of the Central Excise Act, 1944. Despite a significant delay attributed ... Condonation of Delay – Delay in filing appeals - Held that:- Relying upon COLLECTOR LAND ACQUISITION, ANANTNAG & ANR. Versus MST. KATIJI & ORS. [1987 (2) TMI 61 - SUPREME Court] - The order were received by the applicant just before passing of Final Order dated 19.8.2010 - It appears from e-mail communication that the Advocate sent the draft appeal on 22.9.2010 - the applicant was vigilant and diligent to follow up the proceedings time to time for the different periods - there was no gross negligence or deliberate inaction or lack of bona fide - if the delay is not condoned, it may lead to grave injustice and the COD applications deserved to be accepted. It is apparent on the face of record that in the applicants own case, for earlier period, the Tribunal passed Final Order, which was upheld by the Hon'ble Supreme Court - Once, it is ascertained that the lapse on the part of the applicant cannot be construed as gross negligence then length of delay is not so relevant - the applicant took initiative to file the appeal as evident from the e-mail communication - the applicant was not negligent and inactive - it is a fit case for condonation of delay of filing the appeals – Decided in favour of Assessee. Issues Involved:Condonation of delay in filing appeals under Section 35B(3) of the Central Excise Act, 1944.Detailed Analysis:Issue 1: Condonation of DelayThe appeals were filed with a delay of 285 and 250 days, respectively, for Appeal No. E/407/2011 and E/408/2011. The applicant attributed the delay to various reasons, including the belief that the issue had been conclusively decided in their favor based on previous Tribunal orders. The applicant's counsel sent the draft appeal by email, but due to a computer crash, crucial information was lost. Additionally, changes in government policy led to production stoppage, further contributing to the delay. The applicant expressed a genuine belief that no further action was needed due to the previous Tribunal decisions.Issue 2: Submissions by PartiesThe applicant's counsel argued for condonation of delay, citing the precedent that delay is excusable when a similar matter's order was set aside on merit. The Revenue, however, contended that the delay was due to the applicant's negligence and inaction, emphasizing that the applicant failed to file the appeal despite receiving the draft from counsel. The Revenue relied on a Tribunal decision to support their argument against condonation.Issue 3: Legal FrameworkThe Tribunal considered Section 35B(3) of the Central Excise Act, 1944, which mandates appeals to be filed within three months from the communicated order date. The discretionary power under Section 35B(5) allows the Tribunal to admit appeals post the relevant date if sufficient cause is shown, aligning with the principles of the Limitation Act, 1963. The Tribunal referenced Supreme Court guidelines emphasizing a liberal approach to condone delays.Issue 4: Tribunal's DecisionAfter evaluating the facts and circumstances, the Tribunal found no gross negligence or deliberate inaction on the applicant's part. Notably, the Tribunal had previously granted unconditional stays for earlier periods and the applicant had diligently followed proceedings. Considering the settled issue in favor of the applicant for the earlier period, the Tribunal exercised its discretion to condone the delay, ensuring justice and preventing a miscarriage of justice.ConclusionIn line with Supreme Court precedents and the liberal approach to condoning delays, the Tribunal granted condonation of the delay in filing the appeals. The Tribunal emphasized the importance of balancing substantial justice with technical considerations and acknowledged the applicant's proactive steps despite the challenges faced. The case was deemed fit for condonation, and the delay was excused, allowing the appeals to proceed for further hearing.