Bona fide pursuit of wrong remedy can justify condonation, while a strong prima facie case may support waiver of pre-deposit.

Delay may be condoned where the appellant bona fide pursued an incorrect remedy and the time spent in that course is excluded in computing limitation, provided the remaining delay is satisfactorily explained. The note also states that complete waiver of pre-deposit and stay of recovery may be justified where the assessee establishes a strong prima facie case against the penalty, including where the record does not show confiscability of excisable goods as the predicate for penalty under Rule 209A of the Central Excise Rules, 1944. The appeal was left pending for hearing after interim protection was granted.

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Issues: (i) Whether the delay in filing the appeal should be condoned. (ii) Whether the appellant was entitled to complete waiver of pre-deposit and stay of recovery of the penalty.

Issue (i): Whether the delay in filing the appeal should be condoned.

Analysis: The delay arose because the applicant had first pursued the remedy through the firm's appeal and bona fide believed that a separate appeal by the partner was unnecessary. The earlier order in the firm's appeal did not entertain the challenge to the partner's penalty, and the separate appeal was filed within three months of receiving the final order. The time spent in pursuing the wrong remedy was therefore excluded in computing limitation, and the remaining delay was treated as deserving condonation in the interest of justice.

Conclusion: The delay was condoned in favour of the assessee.

Issue (ii): Whether the appellant was entitled to complete waiver of pre-deposit and stay of recovery of the penalty.

Analysis: The penalty was imposed under Rule 209A of the Central Excise Rules, 1944. The record did not show any allegation that excisable goods were liable to confiscation, nor any seizure on that basis. In the connected proceedings, the facts relied upon did not establish a basis for confiscability as a predicate for the present penalty, and the appellant consequently made out a strong prima facie case.

Conclusion: Complete waiver of pre-deposit and stay of recovery were granted in favour of the assessee.

Final Conclusion: The delay was condoned and interim protection was granted against recovery of the penalty, while the appeal itself remained pending for hearing.

Ratio Decidendi: Delay may be condoned where the appellant shows bona fide pursuit of the wrong remedy and the remaining delay is satisfactorily explained, and complete waiver of pre-deposit may be granted where the appellant establishes a strong prima facie case against the impugned penalty.

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