2013 (10) TMI 139 - HC - Central Excise

Condonation of Delay - Whether the appellant has sufficiently explained the delay Held that - The observation of the Tribunal that the order was received by the Company on 17th November, 2003 through courier was based on no material - It does not appeal to reason that when the order has been passed on 17th November, 2003 how it can be received through courier on the same day - It may be another thing that some representative of the appellant may receive the copy of the order in the office itself on the same day but the observation without there being referring to any material is erroneous - More so, in the explanation given in the delay condonation regarding company being sick, it was under consideration before the BIFR, the package was finally sanctioned in the year 2004 and in the meantime there was change of officials, who were looking after the case, was sufficient explanation for condonation of delay. - delay condoned.

Summary

Issues:
Delay in filing the appeal before the Customs Excise and Service Tax Appellate Tribunal.

Analysis:
The appellant filed an appeal before the Commissioner, Central Excise (Appeals) against an order passed by the Deputy Commissioner, Central Excise, Allahabad. The appeal was disposed of on 17th November, 2003. Subsequently, the appellant filed a central excise appeal before the Customs Excise and Service Tax Appellate Tribunal, seeking condonation of delay in filing the appeal. The Tribunal rejected the delay condonation application, citing reasons that the company's negligence and change of officers did not constitute sufficient cause for condonation of the delay. The Tribunal held that the impugned order had attained finality by lapse of time, and the Revenue had acquired a valuable right that could not be taken away due to the appellant's negligence.

The appellant argued that the order dated 17th November, 2003 was never served, and there was no evidence to prove that it was served through courier. The Tribunal's observation that the order was received on the same day it was passed lacked supporting material. The appellant contended that the company's situation, being under consideration before the Board for Industrial and Financial Reconstruction (BIFR) and the subsequent change of officials, was a sufficient explanation for condonation of delay. As there was no proof of the order being served on 17th November, 2003, the appellant's claim of knowing about the order only in January 2005 was accepted. The Tribunal erred in rejecting the application for condonation of delay based on insufficient evidence.

The High Court, after considering the facts and arguments, concluded that the order of the Tribunal could not be sustained. The Court found that the appellant had provided sufficient explanation for the delay and that the Tribunal's decision was erroneous. Therefore, the delay in filing the appeal was condoned, and the order dated 12th July, 2005 was set aside. The Customs, Excise and Service Tax Appellate Tribunal was directed to decide the appeal on merits in accordance with the law. As a result, the appeal was allowed, favoring the appellant.