2012 (12) TMI 427 - AT - Central Excise

Condonation of Delay of 812 days in filing appeal - Held that - Cause for delay as explained by assessee that there was lack of communication between the authorized representative of the appellant and concerned legal and tax department of the appellant is vague plea without detailing the facts not explaining a reasonable cause for delay in filing the appeal. As in December, 2010, the Director of the appellant was arrested and under the term of arrest deposited the interest and penalty. The appellant did not prefer to file the appeal and ultimately in May, 2011, filed the writ petition in the High Court claiming against 100% penalty. There is no explanation as to why the appeal was not filed during the period with effect from December, 2010 to May, 2011. Therefore, the appellant was grossly negligent in pursuing the remedy available to him and has miserably failed to explain sufficient cause for condonation of delay of 812 days in filing the appeal - against the assessee.

Summary

Issues:
Delay of 812 days in filing the appeal against the order dated 24-6-2009 passed by the Commissioner (Appeals).

Analysis:
The appellant sought condonation of the 812-day delay in filing the appeal, attributing the delay to lack of communication between the appellant's representative and the legal and tax departments. The appellant claimed that the delay was unintentional and cited instances of depositing interest and penalty amounts before realizing the correct penalty percentage. The appellant referred to Supreme Court judgments to support the plea for condonation. The Revenue argued against condonation, emphasizing the significant delay and lack of sufficient cause. The Tribunal noted that the appellant received the impugned order on 26-6-2009, with the appeal filed on 14-12-2011, well beyond the limitation period.

The Tribunal highlighted that to succeed, the appellant must prove that the delay was unintentional and due to a reasonable cause. The appellant's explanation of lack of communication was deemed vague and insufficient. Despite being aware of the need to file an appeal in December 2010, the appellant only took action in May 2011 by filing a writ petition in the High Court. The Tribunal found the appellant's actions as gross negligence, especially considering the delay from December 2010 to May 2011 without filing the appeal. The Tribunal rejected the argument that pursuing the wrong remedy in the High Court was a valid excuse, stating that the judgments cited by the appellant were not applicable due to the appellant's negligence.

Ultimately, the Tribunal concluded that the appellant failed to provide a sufficient cause for the 812-day delay in filing the appeal. Consequently, the application for condonation of delay was dismissed, leading to the dismissal of the appeal as time-barred. The Tribunal held that the appellant's gross negligence in pursuing the available remedy and the lack of a reasonable cause for the delay warranted the dismissal of the appeal.