2018 (7) TMI 1194 - AT - Central Excise

Condonation of Delay of 57 days in filing Appeal - power of Commissioner (Appeals) to condone the delay - proviso to Section 35 of the Central Excise Act, 1944 - Held that - In the facts of the present case, the issue is clubbing of the clearances of the appellant with the clearances of several other assistance being M/s Jai Hardware Pvt. Ltd., M/s Door Devices Manufacturing Co., M/s Deepak Hinges Pvt. Ltd., M/s Monika Steels Ltd., M/s D. D. Hardware Pvt. Ltd. & M/s D. P. Garg Exports Ltd. with the turnover of the appellant - We condone the delay in filing the appeal there being reasonable cause and further, we remand the matter back to the file of the Original Adjudicating Authority to decide the issue afresh - COD application allowed.

Summary

Issues involved: Appeal against order of Commissioner (Appeals) dismissed on the ground of limitation - Delay in filing appeal beyond stipulated period - Power of Commissioner to condone delay - Justification for delay - Clubbing of clearances with other entities - Previous rulings favoring the appellant.

Analysis:
1. Limitation of filing appeal: The appellants filed an appeal against the order of Commissioner (Appeals) which was dismissed due to a delay of 57 days beyond the stipulated 60-day period for filing the appeal. The Commissioner (Appeals) only had the power to condone a delay of up to 30 days under the proviso to Section 35 of the Central Excise Act, 1944, leading to the dismissal of the appeal on merits.

2. Justification for delay: The appellant's counsel attributed the delay to the resignation of the law firm's counsel responsible for drafting and filing the appeal. The delay was due to the retrieval of appeal-related documents from the resigned counsel's cupboard on a later date. The Tribunal acknowledged that the delay was beyond the appellant's control and was a result of circumstances in the counsel's office, not gross negligence on the part of the appellants.

3. Legal considerations: The Tribunal considered various judgments, including those of the Hon'ble Apex Court and the High Court of Gujarat, emphasizing that litigants should not suffer due to delays caused by the office of the counsel. The Tribunal cited a case where the High Court allowed an appeal due to valid reasons for delay caused by reshuffling of tasks in the office and the advocate responsible for filing leaving the organization. This established the principle that in cases of sufficient explanation for delay, the appeal could be allowed.

4. Clubbing of clearances: The issue of clubbing the clearances of the appellant with other entities had been previously adjudicated in favor of the appellant by the Tribunal and upheld by the Allahabad High Court. The Tribunal noted that the issue had been rejected earlier and decided in favor of the appellant. Therefore, in the interest of justice, the Tribunal set aside the impugned order, condoned the delay in filing the appeal, and remanded the matter back to the Original Adjudicating Authority for a fresh decision based on previous rulings.

In conclusion, the judgment addressed the issues of limitation in filing the appeal, justification for delay, legal principles regarding delays caused by counsel's office, and the clubbing of clearances with other entities. The decision favored the appellant based on previous rulings and considerations of justice, leading to the remand of the matter for a fresh decision.