2014 (9) TMI 616 - HC - Central Excise

High Court grants appeal on delay condonation application, criticizes Tribunal, directs fresh review

LUMNO INDUSTRIES LTD. Versus COMMISSIONER OF C. EX., HALDIA

The High Court allowed the appeal against the rejection of the application for condonation of delay in filing an appeal before CESTAT. Despite the ... Condonation of delay - question of law - maintainability of appeal - Held that:- The learned Single Bench rejected the writ application on the ground of existence of the alternative remedy of appeal, with liberty to the appellant to file an appeal. We are not inclined to reject the appeal on the technical ground that it involves no substantial question of law, since the Single Bench rejected the writ application on the ground of existence of alternative remedy of appeal. The appeal is, therefore, entertained. Condonation of delay - Held that:- Tribunal lost sight of the fact that the appellant was required to explain the delay from the last date of limitation till the date of filing of the appeal. If the appellant had 90 days to file the appeal from the date of receipt of the order sought to be challenged, the appellant need not have done anything at all for the first few days. The appellant could very well have become active only towards the end. In that view of the matter, the decision to dismiss the application for condonation of delay on the ground of a minor discrepancy in the date of receipt of the order sought to be appealed against, is not only unduly harsh, but also not sustainable in law. It is well settled that delay is to be explained from the last date of limitation onwards. What transpires during the entire period from the time when the order is received and the time when appeal becomes barred by limitation is not required to be explained. The appellant has only to show that, there was sufficient cause for not filing the appeal on the last day of limitation and thereafter explain the delay. The impugned order cannot be sustained and the same is set aside. - delay condoned - Decided in favour of assessee. Issues:Appeal against rejection of application for condonation of delay in filing an appeal before CESTAT.Analysis:The High Court entertained the appeal despite the rejection of the application for condonation of delay by CESTAT, as a writ application challenging the rejection was dismissed by the Single Bench. The Court emphasized that an order rejecting such an application may not involve a substantial question of law, but decided to consider the appeal on its merits due to the alternative remedy of appeal being rejected by the Single Bench.The appellant had filed the appeal with a delay of 73 days, attributing it to the date of receipt of the order under appeal. However, the department's representative produced an acknowledgment showing an earlier receipt date. The Tribunal rejected the application for condonation of delay, citing the discrepancy and lack of sufficient cause. The High Court criticized the Tribunal for not considering the explanation for the delay, emphasizing that a liberal view should be taken in such cases. The Court clarified that the delay should be explained from the last date of limitation onwards, and minor discrepancies should not lead to dismissal.The High Court highlighted that the appellant was not required to explain each day's delay and that the delay should be explained in substance. The Court criticized the Tribunal for dismissing the application based on a minor discrepancy in the receipt date of the order under appeal. The Court set aside the impugned order and directed the Tribunal to reconsider the application for condonation of delay, emphasizing the need to take a liberal view and consider the explanation provided by the appellant.In conclusion, the High Court allowed the appeal, emphasizing the need for a liberal view in condonation of delay cases. The Court set aside the Tribunal's order, directing a fresh consideration of the application for condonation of delay. An urgent certified copy of the order was to be provided to the parties upon compliance with formalities.