2010 (7) TMI 756 - AT - Central Excise

Condonation of delay - preamble to the Appellate Commissioner s order did not guide the appellant properly inasmuch as it laid down not only appellate remedy but also revisional remedy. On the other hand, the ld. JDR submits that the cases in which a revision application to the Government of India could be filed as also other cases in which an appeal could be filed with this Tribunal were distinctly mentioned in the preamble to the impugned order - Held that - appellant was mistakenly pursuing the revisionary remedy before the Government of India after receiving the Appellate Commissioner s order. Upon the papers having been retuned by the revisionary authority, they filed an appeal with this Tribunal without unreasonable delay. In these circumstances, we allow the present application.

Summary

Issues: Condonation of delay in filing appeal; Correctness of remedy pursued by the appellant.

In this judgment by the Appellate Tribunal CESTAT, BANGALORE, the issue at hand is the condonation of a delay of 61 days in filing an appeal. The appellant sought condonation of the delay, which was supported by the ld. Counsel for the appellant and the ld. JDR for the Revenue. The Tribunal found sufficient cause for condonation of the delay, leading to a detailed analysis of the circumstances surrounding the delay.

The appeal in question was directed against the Appellate Commissioner's order. The appellant argued that the preamble to the Appellate Commissioner's order did not properly guide them, as it mentioned both appellate and revisional remedies. On the other hand, the ld. JDR contended that the preamble clearly outlined the cases for which a revision application to the Government of India could be filed and cases where an appeal to the Tribunal was appropriate. Despite this, the appellant initially filed a revision petition with the Government of India within the prescribed time-limit based on their interpretation of the preamble. However, upon being informed by the Revisionary authority that the correct remedy was an appeal before the Tribunal, the appellant filed the present appeal with a delay of 61 days.

The appellant, in support of the prayer for condonation of the delay, relied on a previous decision of the Tribunal in the case of Cairn Energy India Pty. Ltd. v. Commissioner of Central Excise & Customs, Visak-II. In this case, the Tribunal had condoned the delay in an Excise appeal where the appellant had lost time pursuing the wrong remedy. After considering the arguments from both sides and the case law cited, the Tribunal found that the appellant was indeed mistakenly pursuing the revisionary remedy before the Government of India. Upon the return of the papers by the revisionary authority, the appellant promptly filed an appeal before the Tribunal, leading the Tribunal to allow the application for condonation of delay.

In conclusion, the Tribunal allowed the application for condonation of delay in filing the appeal, considering the circumstances and the appellant's mistaken pursuit of the revisionary remedy initially. The judgment emphasizes the importance of choosing the correct legal remedy and the Tribunal's discretion in condoning delays based on sufficient cause.