2009 (10) TMI 512 - HC - Central Excise

Summary

Issues:
- Delay in filing appeal before CESTAT
- Justification for condonation of delay
- Mandatory deposit under Section 35F of the Central Excise Act, 1944
- Discretionary nature of delay condonation plea
- Bona fide belief in appeal filing
- Direction to pay a specific amount to second respondent
- Stay on balance amount pending appeal disposal

Analysis:

The writ petition challenged the order of the CESTAT dismissing an appeal due to a delay of 596 days. The Tribunal found the reasons provided insufficient for condonation of such a significant delay. The petitioner argued financial difficulties, lack of guidance due to the absence of a key personnel, and the Managing Director's illness as causes for the delay. The petitioner contended that these circumstances led to the delay and that the Tribunal erred in not considering these factors, leading to the present writ petition seeking to set aside the CESTAT's order.

The second respondent, in a counter affidavit, highlighted the outstanding duty amount, penalty, and interest totaling Rs. 43,41,591, of which the petitioner had only paid Rs. 10,65,068 under protest. The respondent emphasized the mandatory nature of depositing the duty or penalty under Section 35F of the Central Excise Act, 1944 before filing an appeal. The failure to make this deposit was cited as a reason for not granting any leniency to the petitioner.

Upon hearing both parties, the Court acknowledged the discretionary nature of delay condonation but emphasized that the Tribunal had not adequately considered the reasons for the delay provided by the petitioner. The Court accepted the petitioner's argument that confusion arose due to similar order numbers for the appealed and to-be-appealed orders, leading to the mistaken belief that the appeal had been filed. Consequently, the Court set aside the Tribunal's order and directed the Tribunal to accept and decide the appeal on its merits.

Considering the substantial delay, the Court directed the petitioner to pay Rs. 10,00,000 to the second respondent within four weeks. The Tribunal was instructed to proceed with the appeal upon proof of payment, while the balance amount owed by the petitioner was stayed pending the appeal's disposal. The writ petition was allowed without costs, and the connected motion was closed.