2014 (10) TMI 236 - AT - Central Excise

Condonation of delay - delay of 199 days - Held that - Main ground for the Revenue is that the Commissioners note accepted was mis-construed by the concerned person as acceptance of the order-in-appeal, whereas the Commissioner has accepted the recommendation of the officers for filing the appeal against the impugned order-in-appeal. Though we find that neither the name of the officer responsible for filing the appeal nor his explanation stand produced on record, but keeping in view that the appellant is a Government department, we accept the said explanation offered by the Revenue as sufficient cause for condoning the delay - stay petition filed by the Revenue has become infructuous as respondent has received the consequential refund arising out of the impugned order-in-appeal - Condonation denied.

Summary

Issues: Appeal delay, maintainability of appeal, condonation of delay application, sufficiency of cause for delay, stay petition, refund received.

Analysis:
1. Appeal Delay: The appeal by the Revenue was filed with a delay of 199 days. The Tribunal had earlier disposed of the COD application, stay petition, and appeal by specific orders.

2. Maintainability of Appeal: Relying on a Delhi High Court decision, the Tribunal found that the appeal was not maintainable as the Committee of Commissioners did not apply their mind to the facts of the case while directing the Revenue to file an appeal against the Commissioner (Appeals)'s order. The appeal was dismissed as barred by limitation and not maintainable.

3. Condonation of Delay Application: The Revenue challenged the Tribunal's order in the High Court, which directed the Tribunal to consider if the Revenue had sufficient cause for the delay. The condonation of delay application was restored for fresh adjudication, and the matter was remanded to the Tribunal for consideration.

4. Sufficiency of Cause for Delay: The delay in filing the appeal was explained by the Revenue, stating that the officer misinterpreted the Commissioner's note as acceptance of the order-in-appeal instead of acceptance of the recommendation to file an appeal. The Tribunal accepted this explanation as a "sufficient cause" for condoning the delay and allowed the COD application.

5. Stay Petition: The stay petition filed by the Revenue was deemed infructuous as the respondent had received the refund related to the impugned order-in-appeal. Consequently, the stay petition was dismissed as infructuous.

6. Conclusion: Both the COD application and stay petition were disposed of accordingly, with the Tribunal allowing the COD application based on the accepted explanation provided by the Revenue for the delay in filing the appeal. The stay petition was dismissed due to the refund received by the respondent.