2008 (10) TMI 403 - AT - Central Excise

Condonation of delay - Appeal to Appellate Tribunal - Time Limitation - service of order - Held that - The condonation of delay is a matter of discretion but the discretion has to be exercised judiciously. There must be some explanation for the delay. On the premise that the order was duly served on the appellant in around March, 2006, we are of the view that the appellant was required to give explanation of delay in the application. No explanation at all has been furnished by the appellant - COD not allowed - appeal dismissed as time barred - decided against appellant.

Summary

Issues Involved:
Delay in filing appeal, Condonation of delay, Service of order-in-appeal, Interpretation of Section 37C of Central Excise Act, 1944, Discretion in condoning delay.

Analysis:
1. Delay in filing appeal:
The appellant sought condonation of a 797-day delay in filing the appeal challenging the order-in-appeal issued by the Office of the Commissioner (Appeals) on 16-2-2006. The appellant claimed that they did not receive the copy of the order until 15-2-2008, within the limitation period, and filed the appeal on 14-5-2008. The appellant argued that the delay was unintentional and beyond their control.

2. Condonation of delay:
The appellant's application for condonation of delay was based on the argument that the delay of 797 days was unintentional, bona fide, and beyond their control. However, the Tribunal noted that the appellant failed to provide a satisfactory explanation for the delay. The Tribunal emphasized that the discretion to condone delay must be exercised judiciously and that a mere assertion of unintentional delay without a proper explanation is insufficient to warrant condonation.

3. Service of order-in-appeal:
The appellant contested the Department's claim that the copy of the order-in-appeal was sent on 11-3-2006, citing lack of proof of actual receipt. The appellant relied on a decision to support their argument. However, the Tribunal noted that the Act allows for service by registered post with acknowledgment due, and the service by speed post is considered equivalent to registered post. The Tribunal held that there was adequate proof of dispatch by speed post, satisfying the service requirement.

4. Interpretation of Section 37C of Central Excise Act, 1944:
The Tribunal examined Section 37C of the Central Excise Act, 1944, which outlines the modes of service of decisions, orders, summons, etc. The Tribunal clarified that the Act provides three alternative modes of service, with clause (a) being the ordinary mode. The Tribunal emphasized that when an order is sent by speed post or registered post, there is a presumption of proper service, shifting the onus to prove otherwise to the recipient.

5. Discretion in condoning delay:
The Tribunal highlighted that the appellant had attended hearings before the Commissioner (Appeals) and should have made inquiries about the order-in-appeal. The Tribunal emphasized that the condonation of delay is a matter of discretion that must be exercised judiciously. In this case, the Tribunal found the appellant's explanation for the delay insufficient and rejected the request for condonation, dismissing the appeal as time-barred.

In conclusion, the Tribunal dismissed the appeal due to the time-barred nature of the filing, emphasizing the importance of providing a valid explanation for delay and the presumption of service when orders are dispatched by registered or speed post.