2013 (5) TMI 394

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....9.2.2009. As such, the last date for filing the appeal was on or around 8.5.2009, whereas the appeal stand filed on 16.3.2012, i.e. with a delay of 2 years and 10 months approximately. 2. On going through the COD application, we find that as per the appellant, the appeal papers were handed over to their advocate Shri S. Mohnot & Company, Chartered Accountants, Jaipur, with the direction to file the appeal. According to the appellant, they were under the bonafide belief that the Counsel must have filed the appeal. It was subsequently that when the Revenue approached them for recovery of confirmed dues, they contacted their advocate, who informed them that the appeal has not been filed inasmuch as their concerned employee has left the job.....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed DR relies upon the Tribunal's decision in the case of Fertiliser Corpn. of India Ltd. vs. CCE Ranchi [2012 (282) ELT 463 (Tri-Kolkata)] wherein the delay of 170 days was not condoned by not accepting the explanation of the appellant which was a public sector undertaking. Similarly, our attention stand drawn to the Tribunal's decision in the case of CC, Kolkata vs. Simplex Engineering Pvt. Ltd. [2012 (278) ELT 390 (Tri-Kolkata)] wherein the COD application was rejected on the ground that delay does not stand explained properly. 6. After considering the submissions made by both the sides, we find that the only reason forwarded by the appellants for condoning the delay is that his advocate was instructed to prepare and file the appeal pa....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... However, it has to be kept in mind that such liberal construction attacks the vested right of the other side and if the delay is on account of one of the deliberate inaction or negligence, the same cannot be considered as sufficient cause. While condoning such huge delay, it has to be kept in mind that the same does render the provision of limitation as redundant and inoperative. There is no straight proof jacket formula for condoning or not condoning such delay and every case has to be decided on the available circumstances. 8. By applying the above criterion to the facts of the present case, we find that the delay has occurred on account of diligence or inaction on the part of the assessee. Things are required to be done by the assess....