2017 (1) TMI 88 - AT - Central Excise

Condonation of delay - delay of one day in filing appeal - Held that - the reasons given for filing the appeal late by one day is not intentional and deliberate but on account of bona fide reason and moreover it was very much within the power of the Commissioner (A) to condone the delay up to the period of 30 days on showing sufficient reasons but the learned Commissioner (A) chose not to exercise the discretion. In view of the facts and circumstances, I condone the delay of one day in filing the appeal - matter remanded to Commissioner (A) with the direction to decide the appeal on merits - delay condoned - appeal allowed - matter on remand.

Summary

Issues:
- Appeal dismissed on time bar
- Delay in filing the appeal before the Commissioner (A)
- Condonation of delay

Analysis:
1. Appeal dismissed on time bar:
The appeal was directed against the order passed by the Commissioner (A) dismissing the appeal of the appellant on the grounds of being time-barred. The appellant, engaged in the manufacture of moulded chair seats and backs, received a show-cause notice proposing a demand allegedly payable on the value of exempted goods. The Assistant Commissioner confirmed the demand, leading to the appellant filing an appeal before the Commissioner (A) seeking relief. However, the appeal was rejected due to a delay of one day in filing. The appellant challenged this decision by filing the present appeal before the Appellate Tribunal CESTAT Bangalore.

2. Delay in filing the appeal before the Commissioner (A):
The appellant argued that the delay of one day in filing the appeal before the Commissioner (A) was not intentional but due to the Chief Executive Officer of the appellant-firm being out-of-station. The delay was within the condonable period of 30 days provided under the provisions of Section 35 of the Central Excise Act, 1944. The appellant contended that the delay should have been condoned, as it was not deliberate and did not prejudice the Revenue. The learned counsel emphasized that the "sufficient cause" provision should be liberally construed to advance substantial justice.

3. Condonation of delay:
After hearing both parties and considering the submissions, the Appellate Tribunal found that the delay of one day in filing the appeal was not intentional but due to a bona fide reason. It was noted that the Commissioner (A) had the discretion to condone the delay up to 30 days on showing sufficient reasons but chose not to exercise it. The Tribunal, in view of the circumstances, condoned the delay and set aside the impugned order. The case was remanded back to the Commissioner (A) with directions to decide the appeal on merits after affording an opportunity of hearing to the appellant within three months of receiving the certified copy of the order. The operative portion of the order was pronounced in open court on 02/11/2016.