2012 (7) TMI 475 - AT - Central Excise

Stay - condonation of delay Held that - There was an affidavit filed by a person who received the order in original and had stated that after receiving the order in original he placed it in the cupboard and forgot to handover the same to the management. Any statement on oath, whether it is of a Clerk or a Managing Director, needs to be considered in a proper perspective. In our view, in application for condonation of delay such affidavit should have been considered in an objective manner and not in narrow - justifications given by the appellant before the first appellate authority for delay in filing appeal are to be accepted delay condoned - Stay petition allowed and appeal is allowed by way of remand.

Summary

Issues:
1. Condonation of delay in filing appeal before the first appellate authority.
2. Justification for non acceptance of the delay in filing the appeal.
3. Consideration of affidavit filed by a person who received the order in original.
4. Remand of the matter back to the first appellate authority for decision on merits.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Ahmedabad was directed against an order that dismissed the appeal filed by the assessee due to non-condonation of delay. The Tribunal found that the appeal could be disposed of without the pre-deposit of amounts involved. The first appellate authority had rejected the justification given by the appellant for the delay in filing the appeal, citing that the explanation provided was not satisfactory or convincing. The authority noted that the affidavit submitted by a clerk of the appellant Company was not from a senior or responsible officer, and the case law cited did not support the delay. However, the Tribunal emphasized that any statement on oath, regardless of the position of the affiant, should be considered objectively in matters of condonation of delay.

The Tribunal, upon reviewing the findings, concluded that the justifications provided by the appellant for the delay should be accepted. Therefore, the delay in filing the appeal before the first appellate authority was condoned. Since the first appellate authority had dismissed the appeal solely based on the non-condonation of delay without considering the merits of the case, the Tribunal remanded the matter back to the first appellate authority. The directions were given to restore the stay petition and appeal in their record and decide the case after following the principles of natural justice. Ultimately, the stay petition and appeal were allowed by way of remand, providing an opportunity for a fresh consideration of the case on its merits.