2012 (8) TMI 827 - AT - Central Excise

Condonation of delay - Delay of 2 years - Delay due to non communication of dismissal of appeal - Held that - It is claimed by the appellant that Shri Sunil Kumar Agrawal due to personal difficulty could not communicate the order of dismissal of appeal to the appellant. We are not satisfied with the aforesaid explanation. From the record it is evident that the appeal has been filed after a delay of almost 2 years. It is highly improbable that during this period of 2 years the appellant was not in contact with his authorized representative Shri Sunil Kumar Agrawal. The appellant has placed on record a copy of Order-in-Appeal No. 111/RPR-I/2010, dated 25-3-2010 in his own case. In the aforesaid order, the Commissioner (Appeals) has recorded that Shri Sunil Agrawal, Consultant of the appellant appeared for personal hearing on 25-2-2010. From this it is evident that even after passing of the impugned order in December 2009 Shri Sunil Agrawal, C.A. continued to represent the appellant in excise matter. Therefore, it is highly improbable that Sunil Agrawal would not have communicated the dismissal of appeal to the appellant. Further though the explanation given for delay is that due to personal difficulty Shri Sunil Kumar, Chartered Accountant could not communicate the impugned order to the appellant, affidavit of Shri Sunil Kumar Agrawal has not been filed to support this averment - The appellant has been grossly negligent in this matter - Condonation denied.

Summary

Issues involved:
Delay in filing appeal, Condonation of delay, Compliance with pre-deposit order, Gross negligence, Mala fide intention, Admissibility of appeal after expiry of period, Sufficiency of cause for delay, Application of relevant case laws.

Analysis:

1. Delay in filing appeal and Condonation of delay:
The appellant filed an appeal against the Order-in-Appeal which confirmed a duty demand and penalty. The delay in filing the appeal was attributed to the appellant's representative's failure to communicate the impugned order. The appellant sought condonation of delay, emphasizing that the delay was unintentional. The Tribunal noted the provisions of Section 35B of the Central Excise Act, allowing for the admission of appeals after the expiry of the relevant period if sufficient cause is demonstrated.

2. Compliance with pre-deposit order and Mala fide intention:
The Commissioner (Appeals) had directed the appellant to pre-deposit a specific amount towards duty/interest/penalty, which the appellant failed to comply with, leading to the dismissal of the appeal. The appellant's explanation for not complying with the pre-deposit order was deemed unsatisfactory, indicating a mala fide intention to avoid payment of excise duty. The Tribunal highlighted the importance of compliance with such orders and the consequences of non-compliance.

3. Gross negligence and Sufficiency of cause for delay:
The appellant's contention that the delay was due to the representative's failure to communicate the order was challenged by the Tribunal. The Tribunal found the appellant's explanation unconvincing, as the delay of almost 2 years in filing the appeal suggested gross negligence. The appellant's claim of not being in contact with the representative during this period was deemed improbable, as evidenced by the representative's continued involvement in the appellant's excise matters. The Tribunal emphasized the need for a genuine and reasonable cause for condonation of delay.

4. Application of relevant case laws:
The appellant relied on various judgments to support the plea for condonation of delay. However, the Tribunal concluded that the facts of those cases were distinct from the present case, rendering the cited judgments inapplicable. The Tribunal underscored the importance of considering the specific circumstances of each case while applying legal precedents.

5. Admissibility of appeal after expiry of period:
Given the lack of a valid reason for condonation of delay, the Tribunal dismissed both the application for condonation of delay and the appeal itself as time-barred. The Tribunal's decision was based on the appellant's failure to demonstrate sufficient cause for the delay in filing the appeal, highlighting the importance of timely compliance with legal procedures.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal regarding the delay in filing the appeal, compliance with pre-deposit orders, the appellant's conduct, and the application of relevant legal principles.