2014 (3) TMI 978 - AT - Central Excise

Condonation of delay - Manager who handles the case had received the impugned order and left the service without handing over case papers to his successor - Held that - Reason for delay is that the misplacement of the record by the employee of the appellant-Company. It is stated that Mr. Vasudevan Manager of the Company left the service without handing over the papers to his successor. The learned Counsel for the appellant argued the case on merits which has no relevance unless the delay is condoned. It is not the case of the applicant that the Manager had left the Company with the case file. It is the duty of the successor to trace the files lying in the office. It is seen that the applicant appeared in personal hearing before the Commissioner (Appeals). Thus they were well aware of the proceeding before Commissioner (Appeals). There is a gross negligence and inaction on the part of he applicant. The Hon ble Allahabad High Court in the case of Prem Heavy Engineering Works (2013 (10) TMI 50 - ALLAHABAD HIGH COURT) dismissed the application filed by the assessee of a delay of 41 days in filing the appeal before the Tribunal for the reason that the Managing Director of the Company was the only responsible officer left in the factory due to sickness. - delay cannot be condoned for the same reason that the record was misplaced by the employee of the company. In view of that I do not find any substance in the application filed by the applicant. - Condonation denied.

Summary

Issues: Condonation of delay in filing appeal due to misplacement of case papers by employee; Appellant's argument of paying duty and interest leading to delay; Revenue's reliance on previous judgments disallowing condonation for similar reasons; Negligence of appellant and duty of successor to trace files.

In this case, the applicant sought condonation of a 175-day delay in filing an appeal, attributing the delay to the misplacement of case papers by an employee who left the company without handing over the documents. The applicant contended that they paid the entire duty along with interest, assuming the case was in their favor, and that the appeal only pertained to a penalty issue. However, the Revenue argued against condonation, citing precedents where delays were not excused due to similar circumstances. The Tribunal noted the applicant's awareness of the proceedings before the Commissioner (Appeals) and highlighted the negligence and inaction on the part of the applicant. The Tribunal referenced a case where an application for delay was dismissed by the Hon'ble Allahabad High Court due to the sole responsible officer's absence because of sickness. Ultimately, the Tribunal rejected the condonation application and dismissed the appeal and stay petition, emphasizing the consistent stance of the High Court and the Tribunal against condoning delays caused by the misplacement of records by company employees.