2010 (1) TMI 385 - AT - Central Excise

Delay in Appeal Filing Dismissed for Lack of Prompt Action - Procedural Rules Emphasized

The tribunal dismissed the application seeking condonation of delay in filing an appeal against an order, citing a delay of four years and six months. The ... Condonation of delay - Compliance with CESTAT (Procedure) Rules for filing appeals - Rejection or return of memorandum of appeal under Rule 11 - Effect of non-removal of defects on prosecution of appellate remedy - Finality of rejection of memorandum analogous to decree under Section 2(2) CPCCondonation of delay - Effect of non-removal of defects on prosecution of appellate remedy - Whether sufficient cause was shown to condone delay of four years and six months in filing the appeal. - HELD THAT: - The Tribunal found that although the appeal could have been filed on or before 21st October, 2004, the applicants did not provide any satisfactory explanation for failure to remove the defects pointed out in the defect memo dated 27th September, 2004 which was admittedly received by them. Failure to pursue the appellate remedy in the prescribed manner after being specifically informed of defects cannot be treated as sufficient cause for condonation of an inordinate delay. The applicants' contention that subsequent defect memos were not received was negatived because the address used in the earlier appeal and for departmental communications was the same, and prior departmental notices had been received at that address. In view of absence of sufficient cause for the prolonged delay, condonation was refused. [Paras 7, 8, 14, 16]Application for condonation of delay dismissed for want of sufficient cause.Rejection or return of memorandum of appeal under Rule 11 - Finality of rejection of memorandum analogous to decree under Section 2(2) CPC - Whether an earlier memorandum of appeal filed in 2004, which was returned for defects, entitled the applicants to file the appeal afresh in 2009. - HELD THAT: - The Tribunal interpreted Rule 11 to show power to return or reject defective memoranda and observed that rejection of a memorandum operates to conclude the matter unless set aside in appropriate proceedings. Relying on the analogy to the principle embodied in Section 2(2) CPC (and having regard to statutory provisions cited), the Court held that a returned or rejected memorandum does not entitle the party to a fresh opportunity to file the same appeal as of right. Allowing a second filing in such circumstances would subvert the procedural scheme and amount to permitting relitigation contrary to the Rules. Hence the contention that return of appeal papers in 2009 justified refiling was rejected. [Paras 9, 11, 12, 13]Return/rejection of the earlier memo does not entitle the applicants to file the appeal afresh without appropriate remedy; therefore the plea based on refiling was not accepted.Compliance with CESTAT (Procedure) Rules for filing appeals - Effect of non-removal of defects on prosecution of appellate remedy - Whether non-receipt of subsequent defect memos excused non-removal of defects and justified delay. - HELD THAT: - The Tribunal found that the applicants had disclosed the factory address in the memorandum of appeal filed on 23rd August, 2004 and departmental communications including show cause notice and orders were received at that address. The applicants conceded that intimations must have been sent to the address shown in the appeal. Given that the first defect memo was admittedly received and no valid explanation was offered for not removing defects then, later non-receipt of subsequent memos did not justify the long delay. Consequently the plea of non-receipt was held to be untenable. [Paras 8, 15]Non-receipt of subsequent memos does not excuse failure to remove defects after the first defect memo; the contention was rejected.Final Conclusion: The application for condonation of delay in filing the appeal is dismissed; the Tribunal found no sufficient cause for the four years six months delay, rejected the contention that return of the earlier memo entitled refiling as of right, and held that failure to remove notified defects after receipt of the initial defect memo precluded relief. Issues: Condonation of delay in filing an appeal.In this case, the applicants sought condonation of delay in filing an appeal against the order passed by the Commissioner (Appeals) on 26th May, 2004. The delay was stated to be for four years and six months. The applicants claimed they had filed the appeal on 23rd August, 2004, but it did not comply with the CESTAT (Procedure) Rules. They argued that they did not receive the defect memos sent to them as their factory was closed since 2000, and they had shifted to a new address. However, the tribunal noted that the applicants were aware of the order by 23rd July, 2004, and the appeal should have been filed by 21st October, 2004. The applicants failed to explain why the defects were not rectified despite receiving memos. The tribunal rejected the argument that non-receipt of memos justified the delay, as the applicants had disclosed the factory address for correspondence in the appeal filed in 2004.The tribunal also highlighted that once an appeal is filed and not registered due to defects, the party must pursue the remedy as required by law. Failure to do so does not constitute a sufficient cause for condonation of delay. The tribunal emphasized that allowing a second filing of the appeal would set a bad precedent and go against procedural rules. The tribunal referred to Rule 11 of the CESTAT (Procedure) Rules, which allows rejection of a defective appeal and does not provide for a second filing opportunity. The tribunal concluded that there was no sufficient cause disclosed for condoning the delay of four years and six months, leading to the dismissal of the application.Additionally, the tribunal noted that despite the factory being closed since 2000, previous correspondence, including show cause notices and orders, were duly received by the applicants at the factory address. The tribunal found that the address used for correspondence in the appeal filed in 2004 was the same as the one disclosed in the subsequent appeal. Therefore, the tribunal held that the delay could not be condoned, and the application was dismissed.