2014 (9) TMI 223

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....unal, dismissing Miscellaneous Application No. MA-210/12 filed by the appellant/petitioner, M/s. Universal Paper Mills Ltd. in Appeal No. Ex. Ap 319/12 and Stay Petition No. SP 541/12, for condonation of delay of about 898 days in filing the appeal against an ex parte Order-in-Appeal No. 32/Hal/2009, dated 26th August, 2009 passed by the Commissioner of Central Excise (Appeals-I). 2. A show cause notice being C. No. V-Ch. 48(15)217/CE/Haldia/ Adjn/2004/6829, dated 30th June, 2004 was issued to the appellant calling upon the appellant to show cause why Rs. 8,06,237/- should not be recovered from the appellant under Section 11A(i) of the Central Excise Act, 1944 along with interest under Section 11AB and penalty under Section 11AC of th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....7. Being aggrieved by the aforesaid order of adjudication, the appellant appealed to the Commissioner of Central Excise (Appeals-I) challenging the legality of the order of adjudication. 8. By an ex parte Order No. 14/Hal/09, dated 28th May, 2009, the learned Commissioner (Appeals-I) directed the appellant to deposit 50 per cent of the entire amount of duty and penalty within two weeks from the date of receipt of the said order and to further report compliance within three weeks therefrom. 9. The petitioners filed an appeal before the learned Tribunal on July 27, 2009 contending that the ex parte order passed by the learned Commissioner was liable to be set aside on the ground of violation of the principles of natural justi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....arte in gross violation of the principles of natural justice. The appellant contended that the demand was also barred by limitation. 15. The petitioners also filed an application for condonation of delay of about 895 days in filing the aforesaid appeal. The application for condonation of delay has been dismissed on merits by the judgment and order of the learned Tribunal under appeal. 16. A perusal of the judgment and order under appeal reveals that the learned Tribunal has duly considered the submissions advanced on behalf of the respective parties. Perhaps it would not be out of context to record that on May 28, 2009, the Commissioner (Appeals-I), Kolkata passed an ex parte stay order directing 50% pre-deposit against which th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tion for the subsequent delay. 21. The question is whether this Court can, in an appeal under Section 35G of the Central Excise Act, interfere with the judgment and order rejecting an application for condonation of delay on merits. 22. As observed above, the learned Tribunal has on consideration of the explanation for the delay, found the explanation unacceptable in law and in fact. This Court cannot interfere with the finding of the learned Tribunal only because this Court takes a different view, because of the limited scope of an appeal under Section 35G of the 1944 Act. 23. In support of the submission that this Court might entertain an appeal which involves a substantial question of law, notwithstanding the dismissal b....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....preme Court found on facts that the appellant had taken all possible steps to prosecute the matter within time. 26. In the aforesaid factual background, the Supreme Court held that while considering an application for condonation of delay, no strait jacket formula is prescribed to come to the conclusion if sufficient and good grounds had been made out or not. Each case has to be weighed from its own facts and the circumstances in which the party acts and behaves. From the conduct, behavior and attitude of the appellant, the Supreme Court found that it could not be said that the party had been callous and negligent in prosecuting the matter. 27. In U.P. State Electricity Board (supra), the Supreme Court passed a six line order, "....