2010 (8) TMI 735 - HC - Central Excise

Condonation of delay - stay application - Penalty - According to the appellant, since its unit was closed, the appellant did not have the opportunity before the Commissioner of Appeals and no notice was also served on the appellant - delay of 10 days in filing the appeal - reason adduced by the appellant was due to the closure of the Mills, it took some time for gathering materials for filing the appeal, which cannot be held to be not a justifiable reason. Certainly, it cannot be held that there was inordinate delay in filing the appeal. - Held that - delay was only 10 days in filing the appeal before the Tribunal, order is therefore, set aside, appeal stands allowed - matter restored before tribunal.

Summary

Issues:
1. Condonation of delay in filing appeal before Tribunal.

Analysis:
The case involves the appellant challenging the order of the Customs, Excise and Service Tax Appellate Tribunal, Chennai, regarding the condonation of delay in filing the appeal. The appellant, engaged in the manufacture of cotton yarn, was accused of clandestinely removing manufactured cotton yarn without paying duty and using bogus invoices. The duty payable was determined to be Rs. 69,370, with an additional penalty imposed. The appellant's appeal before the Commissioner of Appeals was dismissed in 2004, allegedly without the appellant's knowledge due to the unit being closed. The appellant received the order copy in 2008 and filed an appeal before the Tribunal in 2009, with a delay of 10 days.

The Tribunal rejected the appellant's application for condonation of delay, citing inordinate delay. However, upon further investigation, it was found that the order from the Commissioner of Appeals was received by the appellant only in 2008, and not earlier. The reason for delay provided by the appellant was the closure of the Mills, which caused a delay in gathering materials for filing the appeal. The High Court held that the delay of 10 days in filing the appeal before the Tribunal was justified, given the circumstances. The Tribunal's decision to reject the appeal on grounds of inordinate delay was deemed unjustified. Consequently, the High Court set aside the impugned order and directed the Tribunal to take the appellant's appeal on file, along with the stay petition, and dispose of the same according to the law. The appeal was allowed with no costs incurred.