2007 (10) TMI 422 - HC - Central Excise

Condonation of delay of 190 days in filing the appeal Held that - provision under Section 35C read with Section 35B(3) of the Act, filing of the present appeal has to be viewed as an illustration of frivolous litigation preferred by the Department, fact finding inquiry be held to find out the person who had advised filing of such appeal. The aforesaid inquiry be completed within a period of one month from the date of receipt of copy of this order, the costs of Rs. 5,000/- shall be deducted from the pay of the employee who had advised filing of the instant appeal.

Summary

Issues:
Delay in filing appeal under Section 35G of the Central Excise Act, 1944 - Condonation of delay - Method of serving the order in appeal - Compliance with provisions of Section 35C and Section 35B(3) - Discretion exercised by the Tribunal in allowing the application - Frivolous litigation by the Department - Imposition of costs on the appellant - Inquiry to identify the person advising the filing of the appeal.

Delay in Filing Appeal and Condonation of Delay:
The appeal was filed under Section 35G of the Central Excise Act, 1944, against an order passed by the Customs, Excise and Service Tax Appellate Tribunal, seeking condonation of a 190-day delay in filing the appeal. The Tribunal found that the order in appeal was sent to the assessee-respondent through Speed Post, which did not comply with the requirement of communication by registered post with acknowledgement due as per Section 35C of the Act. Consequently, the Tribunal concluded that there was no evidence to prove that the order was served on the assessee-respondent, leading to the condonation of the delay.

Discretion of the Tribunal and Frivolous Litigation:
The High Court, after hearing the learned counsel, upheld the Tribunal's decision to condone the delay of 190 days in filing the appeal. The Court emphasized that no interference was warranted in the discretion exercised by the Tribunal. It noted that the filing of the appeal by the Department was an example of frivolous litigation, as it did not adhere to the provisions of Section 35C read with Section 35B(3) of the Act. Consequently, the Court dismissed the appeal and imposed costs of Rs. 5,000 on the appellant.

Imposition of Costs and Inquiry:
In addition to dismissing the appeal and imposing costs, the Court directed that the costs be initially deposited by the revenue-appellant with the Punjab State Legal Services Authority. Furthermore, a fact-finding inquiry was ordered to identify the person who had advised the filing of the appeal. The inquiry was to be completed within one month, and the costs of Rs. 5,000 were to be deducted from the pay of the employee who had recommended filing the appeal.

This detailed analysis of the judgment highlights the issues of delay in filing the appeal, the method of serving the order, compliance with statutory provisions, the Tribunal's discretion, frivolous litigation, imposition of costs, and the subsequent inquiry to identify the responsible party.