2019 (5) TMI 1223 - AT - Central Excise

Condonation of delay of 578 days in filing appeal - Section 35B(5) of the Act, 1944 - HELD THAT - In the present case, the appellant who is the Director of the Company was aware of the order passed by the adjudicating authority as it was received by him on 12 May, 2017. The Director was also aware that an appeal could be filed before the Tribunal, as the Director was a party in Writ Petition in the Delhi High Court where it was sought to be contended that the Writ Petition should be entertained since the requirement of pre-deposit before the Tribunal was onerous. Even after the decision of the Supreme Court on 23 January, 2018 that required the Director to file an appeal before the Tribunal within 30 days from the decision of the Supreme Court, the Director filed the appeal only on 11 March, 2019. Thus, the Director kept quiet for a long period of time from 23 January, 2018 up to 29 January, 2019 even though the Director was not required to wait for a Resolution of the Company for filing an appeal. The delay for this long period from 23 January, 2018 up to January 2019, when the appellant initiated steps for filing the appeal has not been explained at all, much less sufficiently explained. We are, therefore, not convinced that there was sufficient cause for not presenting the appeal within the stipulated period - application for COD dismissed.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Requirement of pre-deposit for filing the appeal.
3. Legal procedures and available statutory remedies.
4. Ignorance of law by the appellant.
5. Application of Supreme Court judgments on condonation of delay.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The appeal was filed under Section 35B of the Central Excise Act, 1944, challenging the order dated 31 March 2017 by the Principal Commissioner of Central Excise, Delhi. The appeal was filed on 11 March 2019, significantly beyond the three-month period prescribed under Section 35B(3) of the Act. The appellant sought condonation of this delay under Section 35B(5), which allows the Tribunal to admit an appeal after the expiry of the relevant period if sufficient cause is shown. The delay amounted to 578 days, and the appellant argued that the delay was due to the Company's decision not to pursue the appeal and subsequent steps taken by the Director to file the appeal in an individual capacity.

2. Requirement of Pre-deposit for Filing the Appeal:
The appellant contended that the requirement of a pre-deposit of 7.5% of the duty demanded imposed an onerous burden, which was a reason for the delay. This argument was initially presented in a writ petition before the Delhi High Court, which was dismissed, and subsequently before the Supreme Court, which also dismissed the petition but granted liberty to file a statutory appeal within 30 days, subject to the requirement of pre-deposit.

3. Legal Procedures and Available Statutory Remedies:
The appellant was a party to the writ petitions and special leave petitions filed before the Delhi High Court and the Supreme Court. Both courts dismissed the petitions, emphasizing that the statutory remedy of filing an appeal before the Tribunal was available. The Supreme Court specifically allowed the filing of the appeal within 30 days from its decision on 23 January 2018, making it clear that the appeal would be considered on merits only if filed within this period and subject to the pre-deposit requirement.

4. Ignorance of Law by the Appellant:
The appellant claimed ignorance of the legal procedures, arguing that he was not aware of the necessity to file the appeal within the stipulated period. However, the Tribunal noted that the appellant, being a Director of the Company, could not claim ignorance, especially since he was actively involved in the legal proceedings at various stages, including the writ petitions and special leave petitions.

5. Application of Supreme Court Judgments on Condonation of Delay:
The appellant relied on several Supreme Court judgments, such as Collector, Land Acquisition Anantnag, State of Haryana, and Indian Oil Corporation Limited, to argue for a liberal approach in condoning the delay. The Tribunal, however, distinguished these cases, noting that they involved the State and public interest, where a more lenient approach might be justified. In contrast, the present case involved a private party who failed to act within the extended period granted by the Supreme Court.

Conclusion:
The Tribunal concluded that the appellant had not provided a sufficient explanation for the delay from 23 January 2018 to 29 January 2019. The appellant's awareness of the legal proceedings and the Supreme Court's explicit direction to file the appeal within 30 days undermined the claim of sufficient cause. Consequently, the application for condonation of delay was rejected, and the appeal was dismissed.

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