TaxTMI 
TaxTMI 
2008 (1) TMI 70
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....ng polythene covers were supplied subsequently till May, 1986 from Parwanoo Depot. When the Department of Central Excise issued a show cause notice raising a demanded of Rs. 30,34,806.50 towards the Central Excise Duty for the supply of aforesaid 10000 polythene covers, M/s. Shivalik Agro Poly Products Limited demanded the aforesaid amount from the appellant which gave rise to a dispute between the appellant and the said company. The matter was referred for adjudication to the sole Arbitrator, who vide its award dated 15-3-1989 has held that M/s. Shivalik Agro Poly Products Limited was entitled to the said amount to wards the Excise Duty. In terms of the said award, the appellant paid Rs.30,34,806.50 to the aforesaid company which was paid by it to the Central Excise Department for supply of the aforesaid 10000 polythene covers. 3. M/s. Shivalik Agro Poly Products Limited initiated the proceedings before the Central Excise authorities seeking to question the demand of Rs.30,34,806.50 raised by the Central Excise Department. The Commissioner, Central Excise, Chandigarh vide its order dated 4-8-1995 dropped the demand of Rs.30,34,806.50 and confirmed the demand to the tune of Rs. ....
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....on is only to the extent that the assessee has right to file the appeal even before the period of limitation. In the circumstances, we do not find any merit in the application and the same is dismissed. Consequently, the appeal is also dismissed." 7. The appellant has challenged the order dated 21-3-2006 passed by the Tribunal in this appeal while raising the following substantial questions of law (i) Whether the Tribunal was justified in dismissing the appeal filed by the appellant on the ground that as per the provision of Section 35(B) of the Central Excise Act, the Tribunal has power to condone the delay within the period of limitation? (ii) Whether the Tribunal has erred in law while dismissing the application for condonation of delay on the ground that the appellant had failed to show sufficient cause warranting condonation of delay of 778 days in filing the appeal.? (iii) Whether the Tribunal has erred in dismissing the appeal by overlooking the fact that refusal to condone the delay would result in miscarriage of justice as the right of the department to recover the amount of duty paid already stood adjudicated by the Tribunal in appeal No. E/689/03/LB(C) decide....
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....ubmitted that the order passed by the Tribunal does not require any interference in this appeal as no substantial question of law is involved. He submitted that the Tribunal has rightly dismissed the application for condonation of delay as the appellant had failed to explain the sufficient reasons for not filing the appeal within of the prescribed period of limitation. Therefore, the application for condonation of delay in filing the appeal and also the appeal were rightly dismissed and the said order does not require any interference. 11. After hearing the arguments of the learned counsel for the parties, we are of the opinion that the Tribunal has erred in law while observing that "as per the provision of Section 35B of the Central Excise Act, 1944, the Tribunal has power to condone the delay within the period of limitation." Sub-section (3) and (5) of Section 35(B) of the Act are reproduced as under "(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal. (5) The Appellat....
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....i for filing the appeal. Ultimately the appeal bearing No. E/387/06 was filed. It has also been stated that in the application some delay had taken place due to inaction of some of the officials of the State Government against whom the disciplinary proceedings have been initiated. 14. In our opinion, the Tribunal has not properly considered the application for condonation of delay in light of the law laid down by the Supreme Court in various cases in this regard and has dismissed the said application while passing a non-speaking order only by one line that there are not sufficient reasons in not filing the appeal within the period of limitation. In State of UP. v. Harish Chandra, 1996 (85) E.L.T. 209 (S.C.) = 1996 (9) SCC 309, while condoning the delay of 480 days in filing the SLP by the State, it has been held by the Supreme Court that it is undoubtedly true that the applicant seeking condonation of delay is duty-bound to explain the reasons for the delay but as has been held in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit the court should consider the question of condonation from that perspective. In another case reported ....