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TaxTMI 
TaxTMI 
TaxTMI 
2013 (12) TMI 346
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....nal on or before 30.10.2010 and 4.12.2010 in Appeal No.E/407/2011 and E/408/2011 respectively. Both the appeals were filed on 11.8.2011. 2. The reason for the delay as narrated by the applicant in their applications as well as the affidavit of Mrs. Lailaa Subramaniayam, Proprietrix of the applicant-firm are common, briefly as under:- (i) The applicant is a Proprietrix firm. It is engaged in the manufacture of Scented Paneer Tobacco and Special Tobacco. The issue involved in this case is the use of brand name and the eligibility of SSI exemption under Notification 8/2003-CE and duty was demanded by periodical show-cause notices and confirmed time to time. (ii) All the confirmed demand orders except in present app....
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....nditional stay in all the cases. Further, the Tribunal by Final Order dated 19.8.2010 dropped the demand on this issue for earlier periods except the initial period of demand and the Tribunal order was upheld by the Hon'ble Supreme Court. Despite that the applicant took steps for filing the appeal as evident from the e-mail communication. However, she was under the bonafide belief that as the issue has already been decided by the Tribunal, there was no need to proceed in the matter. The learned counsel submits that the Central Excise officers insisted to pay the duty against the impugned orders as there was no Tribunal order and then the applicant filed these appeals. He submits that the Hon'ble Supreme Court in the case of Collector of Cus....
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....-section (5) of Section 35B of the said Act had given a discretionary power to the Appellate Tribunal to admit an appeal after the expiry of the relevant date referred to in sub-section (3) of the said Act, if it is satisfied that there was sufficient cause for not presenting it within that period. The words "sufficient cause" for not preferring the appeal within such period is also mentioned under Section 5 of the Limitation Act, 1963. In that context, the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag Vs. Mst. Kathiji - AIR 1987 SC 1353 had laid down the guidelines as under:- "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay c....
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....e the Court, to which the Court can apply its mind (b) Condonation depend on the facts of each case but the facts must be placed by the applicant before the court (c) Courts should take liberal views" 7. It is clear from the above decisions that the Courts should have a liberal approach for condoning the delay. But it is not the case that in every case the delay must be condoned. It is settled that the rights which have accrued to any party after expiry of limitation, should not be disturbed at the instance of a negligent litigant. It should be kept in mind while considering the application for condonation of delay that after expiration of limitation for filing the appeal gives right to the Revenue to recover th....
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....the merit of the case is not considered at the time of deciding the application for condonation of delay. But, in the present case, 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. The Hon'ble Supreme Court in the case of Toshiba Anand Batteries (supra) as relied upon by the learned Advocate held as under:- "Having regard to the fact that the Tribunal had earlier allowed the appeals against the same order of the Collector of Appeals and the view of the Tribunal has been upheld by this Court, we are of the view that these are fit cases in which the Tribunal should have condoned the delay in the filing of the ....
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....n by the applicant. 10. The contention of the learned AR that there is inordinate delay which cannot be excused. 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 learned AR relied upon the decision of the Tribunal in the case of Star Drugs & Research Lab (supra). In that case, the delay of 313 days was not condoned. The facts of the said case are different from the present case. In that case the assessee claimed that they have handed over the impugned order to the consultant who has misplaced in his office and thereafter the consultant met with an accident and remained hospitalized which is not corroborated with any evidence. In the pres....