2011 (3) TMI 1221 - AT - Central Excise

Application for stay - Time limitation - Condonation of delay - Held that - Appeal filed by the appellant has been dismissed by the lower appellate authority on 61st day without exercising his discretionary power to condone the delay and without giving any opportunity to explain the reasons for delay in filing the appeal - lower appellate authority atleast should have given a chance to the appellant to explain the reason for delay which is merely a delay of only one day - Appeal as well as stay application are disposed of

Summary

Issues:
1. Dismissal of appeal as time-barred without condoning delay.
2. Lack of opportunity to explain reasons for delay in filing the appeal.
3. Request for setting aside the impugned order.

Issue 1: Dismissal of appeal as time-barred without condoning delay
The appellant filed an appeal along with a stay application against an order that was dismissed as barred by limitation. The facts revealed that the appellants received the adjudication order on a specific date and filed the appeal after a certain number of days, leading to the dismissal by the lower appellate authority without utilizing discretionary power to condone the delay. The appellant argued the issue on merit during proceedings, but the appeal was rejected as time-barred without allowing them to provide reasons for the delay. The tribunal found this dismissal unjust and rejected the impugned order, emphasizing that the lower appellate authority should have given the appellant an opportunity to explain the mere one-day delay.

Issue 2: Lack of opportunity to explain reasons for delay in filing the appeal
The learned Advocate representing the appellant highlighted the lack of opportunity given to explain the reasons for the delay in filing the appeal. The lower appellate authority dismissed the appeal without requesting an application for condonation of delay, leading to a situation where the appellant was not able to present the reasons that caused the delay. The tribunal acknowledged this procedural flaw and emphasized that the lower appellate authority should have provided the appellant with a chance to clarify the reason for the minor delay of only one day. This lack of opportunity to explain the delay was deemed incorrect in the eyes of the law, leading to the rejection of the impugned order.

Issue 3: Request for setting aside the impugned order
The learned Advocate prayed for setting aside the impugned order due to the procedural irregularities in dismissing the appeal as time-barred without considering the circumstances of the delay. The tribunal, after considering the submissions, decided to waive the requirement of pre-deposit and proceeded to dispose of the appeal. The tribunal concluded that the impugned order was not correct in the interest of justice, condoned the delay in filing the appeal, directed the lower appellate authority to hear the appellant on merits, and instructed them to pass an appropriate order in accordance with the law. Consequently, the appeal and stay application were both disposed of in the manner outlined by the tribunal.