2021 (6) TMI 1152 - HC - Central Excise

Condonation of delay in filing application - genuine belief of appellant that no order in appeal existed before receiving of Sabka Vishwas letter from the department or not - malafide on part of appellant in late filing of appeal or not - HELD THAT - Even though the delay in filing the appeal is to be considered liberally, but the fact remains that the appropriate reason should be assigned for condoning the delay. There is no justification shown by the appellant that despite of the fact that the case was finally heard and decided by the authority where he was represented by the counsel, he has made any attempt to find out the outcome of the case pending before the authority for more than nine years and only when a notice of demand was raised, he has filed the appeal. The only reason which has been given for delay in filing the appeal is that the counsel did not inform regarding the order passed by the authority. That cannot be considered to be a genuine reason for condoning the delay. The appellant himself should be vigilent about his rights. Once he is aware of the fact that the case is considered and heard by the authority, he should have pursued the matter or approached the counsel for knowing the outcome within a reasonable time. Waiting for the information to be given by the counsel for almost ten years, is not justifiable. Under these circumstances, we do not find it appropriate to condone the huge delay of approximately ten years in filing the appeal. The impugned order reflects that the department has produced the relevant extract of the dispatch register to show acknowledgement card pointing out the delivery of the impugned order to the appellant within time. The same cannot be negated in terms of the affidavit which has been submitted by the appellant himself before the appellate authority. Thus, no illegality is committed by the appellate authority in not condoning the huge delay of approximately ten years. The impugned order passed by the appellate authority is a well reasoned and justified order. There are no ground to condone the huge delay in filing the appeal. The impugned order has rightly been passed, which does not call for any interference in the present appeal - appeal dismissed.

Summary

Issues:
1. Condonation of delay in filing the appeal under Section 35-G (1) of the Central Excise Act, 1944 read with Section 83 of Finance Act, 1994.
2. Applicability of case law on deliberate delay in filing an appeal.
3. Allegation of non-receipt of order and delay in filing appeal.

Analysis:

Issue 1: Condonation of Delay
The appellant sought condonation of a significant delay of approximately ten years in filing the appeal. The court held that the reasons provided were insufficient to justify the delay. Despite the appellant's claim of not being informed about the order by their counsel, the court emphasized the appellant's responsibility to be vigilant about their rights. The court noted that waiting for information from the counsel for almost a decade was not justifiable. The appellant's failure to follow up on the case's outcome for nine years and only filing the appeal upon receiving a notice of demand did not constitute a genuine reason for condonation of the delay. The court concluded that no appropriate justification was presented for the ten-year delay, leading to the dismissal of the appeal.

Issue 2: Application of Case Law
The appellant contended that a liberal approach should be adopted in cases of no deliberate delay in filing an appeal, citing a Supreme Court judgment. However, the court found that the case law referred to by the appellant was not applicable to the present circumstances. While acknowledging the need for a liberal consideration of delays, the court emphasized the importance of providing valid reasons for condonation. The court highlighted that the mere lack of information from the counsel did not absolve the appellant from their duty to actively pursue their case or seek updates on its progress.

Issue 3: Allegation of Non-Receipt of Order
The appellant claimed non-receipt of the order and alleged that someone from the staff might have signed on their behalf without informing them. However, the court noted that the department had produced evidence, including an acknowledgment card and dispatch register extract, indicating the timely delivery of the order to the appellant. The court found that the appellant's affidavit did not refute the department's evidence, leading to the conclusion that no illegality was committed by the appellate authority in not condoning the significant delay in filing the appeal.

In conclusion, the court upheld the impugned order, emphasizing that the appellant's failure to actively monitor their case progress and the lack of valid reasons for the delay did not warrant condonation. The appeal was dismissed, and no costs were awarded.