2015 (1) TMI 582 - HC - Central Excise

Condonation of delay - Whether the Tribunal was justified in law in not condoning the delay of 338 days in preferring the appeal and its purported findings dismissing the application for condonation of delay as well as the stay application and appeal are arbitrary, unreasonable and perverse - Held that - Tribunal while not accepting the causes shown did not disbelieve per se, such causes but expected from the appellant conduct that would have shown better diligence on its part. Such findings of the Tribunal, in our view, could not be said to have been made in following the decision of the Hon ble Supreme Court in the case of the Office of the Chief Post Master General (2012 (4) TMI 341 - SUPREME COURT OF INDIA) where the appellant Government company had not given any explanation at all. Since the Tribunal in its order did not deal with the explanation given in the appeal before it in the context of whether they by themselves were sufficient cause or not, we find the order was perverse and thus substantial question of law arises. - Matter remanded back - Delay condoned.

Summary

Issues:
Delay in preferring the appeal and condonation of delay.

Analysis:
The appellant filed an appeal against an order passed by the Customs, Excise, and Service Tax Appellate Tribunal, seeking condonation of a 338-day delay in preferring the appeal. The Tribunal dismissed the Miscellaneous Application and Appeal based on the judgment in Office of the Chief Post Master General v. Living Media India Ltd. The Tribunal found that the appellant did not show diligence and commitment in prosecuting the matter in time, as they failed to promptly retrieve relevant documents and did not approach the Department for necessary records after being informed of the appeal's dismissal. The Tribunal concluded that the reasons given for the delay were not sufficient cause, in line with the Supreme Court's decision.

The appellant, represented by a Senior Advocate, relied on the judgment in Commissioner of Income Tax v. Agarwal Hardware Works Pvt. Ltd. to argue that a substantial question of law arose from the Tribunal's decision not to condone the delay. It was highlighted that unlike the case in Office of the Chief Post Master General, the appellant in this matter did provide some explanation for the delay. On the other hand, the respondent's Advocate contended that the causes shown by the appellant were correctly deemed unacceptable, and the Tribunal's decision did not require any interference, especially considering the lack of sufficient cause.

The High Court, after a detailed analysis, found that the Tribunal's decision was not based on a proper assessment of the appellant's explanation for the delay. The Court noted that the Tribunal did not disbelieve the causes shown by the appellant but expected a higher level of diligence from them. It was observed that the Tribunal did not adequately address whether the explanations provided constituted sufficient cause for condonation of delay. Consequently, the Court deemed the Tribunal's order as perverse, leading to the admission of the appeal in favor of the appellant. The Court directed the Tribunal to expeditiously take up and dispose of the appeal and stay application on merits. Finally, the application and the appeal were disposed of, with instructions to provide urgent copies of the order to the parties upon request.