2012 (11) TMI 687 - AT - Central Excise

Condonation of delay - delay of 350 days - Held that - The applicant is taking contradictory stand i.e. in the application the contention is that applicant was not in a position to take decision for filing the appeal whereas during the arguments applicants blame his Counsel. Thus the applicant failed to show sufficient cause for delay. The COD application is dismissed - against assessee.

Summary

Issues: Restoration of appeal, Condonation of delay in filing the appeal

Restoration of Appeal:
The applicant filed an application for restoration of the appeal after it was dismissed due to non-appearance of the counsel before the adjudicating authority. The applicant claimed that the counsel did not appear despite instructions, leading to the dismissal of the appeal. The COD application was also dismissed, but the applicant provided reasons for the delay. The Tribunal restored the COD application, stay application, and appeal to their original number based on the explanations provided.

Condonation of Delay in Filing the Appeal:
The applicant sought condonation of a 350-day delay in filing the appeal, citing procedural delays and efforts made to resolve the issue. The applicant had initially paid the duty under protest, followed by a letter to the jurisdictional Asst. Commissioner and Range Superintendent. Despite no decision on the protest letter for three years, a show cause notice was issued, prompting the applicant to pay the disputed duty again under protest. The applicant claimed that the delay was due to the counsel's negligence in not filing the appeal within the normal limitation period, despite submitting all relevant documents. However, during arguments, the applicant's proprietor admitted fault on the counsel's part, which was not mentioned in the application for condonation of delay. The Revenue opposed the applications, highlighting the contradictory stand taken by the applicant regarding the reasons for the delay.

Analysis:
The Tribunal referred to Section 35F of the Central Excise Act, which allows for the condonation of delay upon showing sufficient cause for not filing the appeal within the normal limitation period. The Tribunal noted the applicant's conflicting statements, where the application cited the inability to decide on filing the appeal, while during arguments, the blame was placed on the counsel. The Tribunal found that the applicant failed to demonstrate sufficient cause for the delay, especially considering the lack of action taken against the negligent counsel, such as filing a complaint with the bar counsel. Consequently, the COD application was dismissed, leading to the dismissal of the stay petition and appeal as well.

In conclusion, the Tribunal's decision was based on the lack of a valid explanation for the delay in filing the appeal, as well as the inconsistent stance taken by the applicant regarding the reasons behind the delay. The dismissal of the applications underscores the importance of providing clear and consistent justifications when seeking condonation of delay in legal proceedings.