2012 (11) TMI 823 - AT - Central Excise

Conodonation of delay - Waiver of pre-deposit of duty demand, interest and penalty - Delay of 20 days beyond the prescribed period of 60 days in filing Appeal - held that - Proprietor of the appellant firm was indisposed due to illness and also that his counsel could not file appeal in time because of unfortunate demise of his relative. - delay is condoned in filing of appeal and set aside the impugned order passed by the Commissioner (Appeals) and remand the matter back to the Commissioner (Appeals) for de novo adjudication on merits after giving opportunity of being heard the appellant.

Summary

Issues involved:
1. Appeal against order dismissing appeal as time-barred.
2. Application under Section 35 F of the Central Excise Act, 1944 seeking waiver of pre-deposit.
3. Consideration of delay in filing appeal due to unavoidable circumstances.

Analysis:

Issue 1: Appeal against order dismissing appeal as time-barred
The appellant filed an appeal against the order in original confirming excise duty, interest, and penalty, but the Commissioner (Appeals) dismissed the appeal as time-barred without considering the merits of the case. The appellant contended that the delay in filing the appeal was due to unavoidable circumstances, such as the proprietor's illness and the counsel's inability to file the appeal promptly. The appellant argued that the delay should have been condoned, especially since the issue involved had been decided in favor of the appellant in a previous case. The Tribunal found the Commissioner's dismissal on technical grounds unjust, emphasizing the need for a liberal view in condoning delays. Consequently, the Tribunal set aside the impugned order and remanded the matter for de novo adjudication on merits.

Issue 2: Application under Section 35 F seeking waiver of pre-deposit
The appellant also filed an application under Section 35 F of the Central Excise Act, 1944 seeking waiver of the pre-deposit of duty demand, interest, and penalty. The Tribunal, after considering the matter, proceeded to hear the appeal after waiving the condition of pre-deposit. This decision was made to facilitate a comprehensive hearing of the appeal without hindrances related to pre-deposit requirements.

Issue 3: Consideration of delay in filing appeal due to unavoidable circumstances
The Tribunal examined the reasons for the delay in filing the appeal, which was 20 days beyond the prescribed period of 60 days. The appellant cited the proprietor's illness and the counsel's personal circumstances as reasons for the delay. The Commissioner (Appeals) took a strict view by requiring medical evidence to substantiate the appellant's claim of illness. However, the Tribunal disagreed with this approach, emphasizing the need for a liberal interpretation when dealing with applications for condonation of delay. The Tribunal concluded that the delay was reasonable given the circumstances and, therefore, condoned the delay, setting aside the Commissioner's dismissal and remanding the matter for further adjudication.

This detailed analysis of the judgment highlights the key issues involved, the arguments presented by both parties, and the Tribunal's decision in each aspect of the case.