2019 (4) TMI 1556 - HC - Central Excise

Condonation of delay in filing appeal - whether the Tribunal was justified in dismissing the appellant's appeal on account of delay of 188 days in filing the appeal before it? - HELD THAT - The Tribunal found the delay in filing the appeal was not satisfactorily explained by the appellant. This essentially on the ground that the evidence to support the inability to attend work due to back pain was a medical certificate issued by a Paediatric Surgeon. It was in the above circumstances, the Tribunal took a view that the delay does not deserve to be condoned. The view taken by the Tribunal may be a possible view. However, in case of doubt, the benefit, if any, must go in favour of the appellant - We do feel in matters such as these, a more liberal approach should be adopted as nobody gains by delaying filing of an appeal and when the reasons for the delay is a plausible reason which is not alleged to be untrue then the ends of justice would require condoning the delay and by considering the issue on merits. Delay condoned - the appeal of the appellant would be restored to the file of the Tribunal.

Summary

Issues:
1. Condonation of delay in filing an appeal under Section 35G of the Central Excise Act, 1944.
2. Justification of dismissing the appeal by the Tribunal due to delay.
3. Validity of medical certificate issued by a pediatric surgeon in support of the delay reason.

Analysis:
1. The appeal challenged the order passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) under Section 35G of the Central Excise Act, 1944. The primary issue was the condonation of a delay of 188 days in filing the appeal before the Tribunal.

2. The appellant cited back pain as the reason for the delay, supported by an affidavit and a doctor's certificate issued by a pediatric surgeon. However, the Tribunal dismissed the appeal and the condonation application, questioning the genuineness of the reasons for delay and attributing it to appellant's negligence.

3. The Tribunal found the delay explanation unsatisfactory, emphasizing that the medical certificate from a pediatric surgeon did not adequately support the inability to work due to back pain. The High Court noted that a pediatric surgeon is a qualified doctor competent to issue such a certificate, and a more liberal approach should be adopted in such cases.

4. While acknowledging the Tribunal's plausible view, the High Court intervened to ensure justice. The appellant was directed to pay a cost of ?20,000 to the Commissioner of Central Excise within two weeks. Upon payment, the appeal would be restored to the Tribunal for a merit-based hearing after condoning the delay. Failure to deposit the amount within the specified time would result in the appeal being dismissed without further reference to the Court.