2014 (9) TMI 584 - HC - Central Excise

Condonation of delay - Whether in the facts and circumstances of the case, the Customs, Excise and Service Tax Appellate Tribunal was right in not condoning the delay of 168 days in filing the appeal before it particularly in view of the fact that in the appellant s own case involving the same issue, the appeal was admitted and unconditional stay was granted - Held that - The file containing the original order and related documents were handed over to this consultant in the first week of December, 2011. The file was misplaced in the office of the consultant with the couple of more files of other clients due to shifting of office and extensive renovation work thereafter. It is in these circumstances that the consultant has admitted the lapses on his part. We are of the opinion that, for such reasons the delay should have been condoned. These are not matters where the appellants have any control. The lapse or negligence on the part of the consultant should not visit the appellant with dismissal of the appeal. - Delay condoned.

Summary

Issues: Condonation of delay in filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal.

Analysis:
The High Court of Bombay heard an appeal challenging the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai, which dismissed the application seeking condonation of a 168-day delay in filing the appeal. The High Court noted that the appeal raised a substantial question of law regarding the Tribunal's decision not to condone the delay. The Court admitted the appeal based on the substantial question of law concerning the delay issue. The Court proceeded to consider the application seeking condonation of delay, where the applicant explained the circumstances leading to the delay and provided an affidavit. The appellant argued that the delay was unintentional and pointed out a previous appeal involving the same issue where the delay was condoned, and unconditional stay was granted by the Tribunal.

The Court acknowledged the reasons provided by the deponent of the affidavit, stating that the delay was not intentional and occurred due to circumstances beyond the appellant's control. The deponent, a consultant with over 17 years of experience, admitted misplacing the file containing the original order and related documents due to office shifting and renovation work. The Court opined that the delay should have been condoned based on these reasons, emphasizing that the appellant was not negligent and the consultant's lapse should not lead to the dismissal of the appeal. The Tribunal's insistence on an explanation for the delay despite the circumstances was deemed hyper-technical by the High Court, which emphasized the need for a liberal view and condonation of delay in genuine cases where the litigant acts in good faith.

Consequently, the High Court quashed and set aside the impugned order, thereby condoning the delay in filing the appeal. However, the Court imposed a cost of Rs. 10,000 on the appellant to be paid to the respondent within four weeks. The judgment highlighted the importance of considering the circumstances leading to the delay in filing an appeal and the need for a balanced approach in condoning delays when the litigant acts in good faith and is not negligent.