2017 (12) TMI 1620 - HC - Central Excise

Principles of natural justice - no opportunity given to petitioner to establish his case - Whether in the facts of this case the finding of the Tribunal was perverse in not accepting the affidavit evidence of the constituted attorney of the assessee in which the reason for delay was sought to be explained without giving further opportunity to the assessee to explain delay through the persons to whom the cause of such delay directly attributed? Held that - In the instant case, the assessee had taken the point before the Tribunal through an affidavit of its constituted attorney. But no affidavit by the person concerned, who had retired was filed. It is apparent from the order of the Tribunal that no further opportunity was given to the assessee to establish its contention by filing affidavit of the concerned person. In the supplementary affidavit filed before us, the affidavit has been annexed - in the given circumstances of the case, at least a further opportunity should have been given to the assessee to explain the reason for delay. We, therefore, answer the question, on which we have admitted the appeal, in the affirmative and in favour of the assessee. The order of the Tribunal is set aside and the matter is remanded to the Tribunal for a decision afresh.

Summary

Issues involved:
- Whether the Tribunal's finding of not accepting the affidavit evidence of the constituted attorney of the assessee without giving further opportunity to explain the delay was perverse?

Analysis:
The High Court of Calcutta admitted the appeal based on the substantial question of law regarding the Tribunal's decision on the delay issue. The Tribunal had dismissed the appellant's appeal due to a delay of 651 days. The appellant's case was that the order was received by an employee who did not bring it to the management's notice before retiring. The Tribunal rejected the appellant's explanation for the delay, stating that no affidavit was filed by the employee to justify the delay. The Revenue opposed the appeal, citing a Supreme Court decision where delay causes were considered afterthoughts. The High Court noted that the Tribunal did not give the assessee an opportunity to explain the delay properly. The Court found that a further opportunity should have been given to the assessee to clarify the reason for the delay. Thus, the Court answered the question in favor of the assessee.

The High Court set aside the Tribunal's order and remanded the matter for a fresh decision. The assessee was allowed to file the retired employee's affidavit before the Tribunal, and the Revenue would have a chance to object to it. The Tribunal was directed to handle the matter according to the law. Consequently, the appeal and the application were disposed of based on the above terms.