2010 (5) TMI 460 - AT - Central Excise

Appeal to Appellate Tribunal Limitation Delay in filing appeal condonation of delay Appeal filed beyond time limit but revenue having knowledge of relevant order before, cannot be said to have sufficient cause of delay Sufficient cause absent and Dept. not admitting delay and expecting Tribunal to condone delay delay not condoned Strictures against Dept. Delay in filing appeal Delay due to getting official copy absence of due diligence by Dept. to take appropriate steps in time - on account of carefree attitude on the part of the Government officers, matters get delayed - when it comes to condonation of delay, the reasons should be justifiable reasons and shall be in relation to the sufficient cause for condonation of delay Delay not condoned

Summary

Issues:
Delay in filing appeal for condonation, Knowledge of the order by the department, Compliance with Section 35E of the Central Excise Act, Sufficiency of cause for condonation of delay, Proper verification of delay condonation application.

Delay in filing appeal for condonation:
The case involved an appeal seeking condonation of delay in filing the appeal by the department. The order-in-appeal was passed by the Commissioner (Appeals) on January 7, 2008, related to a refund claim by the assessee. The department claimed that the official copy of the order was received on August 18, 2008, and subsequently, the appeal was filed on November 17, 2008. However, the department argued that there was no delay as the appeal was filed within the time limit from the date of receipt of the official copy.

Knowledge of the order by the department:
The department contended that the delay, if any, was only three months and three days from the date the copy of the order was made available to the department. The advocate for the respondents highlighted that the office was aware of the order-in-appeal even before the official copy was received, as evidenced by a letter dated July 18, 2008. The letter indicated that the office was fully aware of the order and could have taken necessary steps for review without waiting for the official copy.

Compliance with Section 35E of the Central Excise Act:
The department argued that an official copy was necessary for authenticity before taking action under Section 35E. However, the respondents pointed out Section 37C(2) of the Act, which deems a decision or order served when a copy is delivered or affixed. The Tribunal noted that once the office had sufficient knowledge of the order, the limitation period for filing the appeal should commence from the date of knowledge.

Sufficiency of cause for condonation of delay:
The Tribunal emphasized that condonation of delay is a matter of discretion to be exercised judiciously. The records must reveal sufficient cause for the delay. It was observed that the concerned officer had knowledge of the order well before the official copy was received, indicating a lack of due diligence on the part of the department.

Proper verification of delay condonation application:
The Tribunal highlighted the importance of a properly verified affidavit in delay condonation applications. Despite previous instructions for a verified affidavit, the department's affidavit lacked a verification clause, raising concerns about the completeness and lawfulness of the document. The lack of a proper affidavit further weakened the department's case for condonation of delay.

The Tribunal ultimately dismissed the application for condonation of delay due to the absence of sufficient cause for the delay in filing the appeal, emphasizing the need for justifiable reasons and due diligence in such matters.