2021 (7) TMI 1190 - AT - Central Excise

Condonation of delay - Earlier, the petition dismissed by the HC on the ground that the writ petitioner (the appellant herein) had a statutory alternative remedy of preferring an appeal before the Tribunal - HELD THAT - Against the order passed by the Commissioner on February 23, 2018, the appellant had a statutory alternative remedy of preferring an appeal before the Tribunal. The appellant, however, preferred a writ petition before the High Court on July 16, 2018,which petition was dismissed on July 26, 2018 for the reason that the writ petitioner had a statutory alternative remedy of preferring an appeal before the Tribunal. There is no good reason as to why, after the order was passed by the High Court dismissing a writ petition on the ground that the writ petitioner had a statutory alternative remedy of preferring an appeal before the Tribunal, the applicant preferred a Miscellaneous Application before the Tribunal for compliance of the earlier directions issued by the Tribunal on January 31, 2017. Though there is a considerable delay in filing the appeal, but having regard to the fact that the applicant had approached High Court and, thereafter, had filed a Miscellaneous Application before the Tribunal we consider it appropriate to condone the delay but on imposition of cost upon the Appellant - The delay condonation application is, accordingly allowed on payment of cost of ₹ 1 lakh, which shall be paid by the applicant within a period of one month from today in the account of Prime Minister's National Relief Fund. List this appeal with the office report regarding compliance of the order on August 31, 2021.

Summary

Issues: Delay in filing appeal, condonation of delay, statutory alternative remedy, concealment of facts, imposition of cost

In this case, the appellant filed an appeal to challenge an order passed by the Commissioner, with an application for condoning the delay in filing the appeal. The appellant received the order on February 23, 2018, but filed the appeal only on February 15, 2019, citing various actions taken in the interim. The appellant had initially filed a writ petition in the High Court, which was dismissed on the grounds that the appellant had a statutory alternative remedy of filing an appeal before the Tribunal. Subsequently, the appellant filed a Miscellaneous Application before the Tribunal for compliance with an earlier order, which was rejected, emphasizing that the proper remedy was to file an appeal against the original order. The appellant argued that the delay was not deliberate and should be condoned due to pursuing remedies in good faith. The Department strongly opposed the application, highlighting that the appellant should have filed the appeal in a timely manner instead of taking other actions. The Tribunal considered the submissions from both sides and noted the appellant's failure to file an appeal despite clear directions and opportunities to do so. Despite the considerable delay, the Tribunal decided to condone the delay on the condition that the appellant pays a cost of ?1 lakh to the Prime Minister's National Relief Fund within one month. Failure to make the payment would result in the dismissal of the delay condonation application and the appeal itself. The appeal was listed for further proceedings with a report on compliance scheduled for August 31, 2021.