2010 (1) TMI 385 - AT - Central Excise

Limitation- It is the case of the applicants that they had, in fact, filed the appeal on 23rd August, 2004. However, the same was not in accordance with the procedure prescribed under the Cestat (Procedure) Rules in relation to the appeal and, therefore, the applicants were directed under memo dated 27th September, 2004 to remove the defects. There was no staff present at the factory premises as the factory was closed since 2000. Being so, the applicants did not remove the defects in the appeal memo. Held that- The fact remains that the correspondence sent at the factory address was duly received by the applicants. It is also to be noted that the appeal sought to be filed by the appellants also discloses the same address which was disclosed in the appeal filed in 2004. It is not the case that the CESTAT has sent the defect memo on the address different from the one disclosed in the appeal memo. For the reasons stated above, therefore, we find no case having been made out for condonation of delay and hence the application is dismissed.

Summary

Issues: Condonation of delay in filing an appeal.

In this case, the applicants sought condonation of delay in filing an appeal against the order passed by the Commissioner (Appeals) on 26th May, 2004. The delay was stated to be for four years and six months. The applicants claimed they had filed the appeal on 23rd August, 2004, but it did not comply with the CESTAT (Procedure) Rules. They argued that they did not receive the defect memos sent to them as their factory was closed since 2000, and they had shifted to a new address. However, the tribunal noted that the applicants were aware of the order by 23rd July, 2004, and the appeal should have been filed by 21st October, 2004. The applicants failed to explain why the defects were not rectified despite receiving memos. The tribunal rejected the argument that non-receipt of memos justified the delay, as the applicants had disclosed the factory address for correspondence in the appeal filed in 2004.

The tribunal also highlighted that once an appeal is filed and not registered due to defects, the party must pursue the remedy as required by law. Failure to do so does not constitute a sufficient cause for condonation of delay. The tribunal emphasized that allowing a second filing of the appeal would set a bad precedent and go against procedural rules. The tribunal referred to Rule 11 of the CESTAT (Procedure) Rules, which allows rejection of a defective appeal and does not provide for a second filing opportunity. The tribunal concluded that there was no sufficient cause disclosed for condoning the delay of four years and six months, leading to the dismissal of the application.

Additionally, the tribunal noted that despite the factory being closed since 2000, previous correspondence, including show cause notices and orders, were duly received by the applicants at the factory address. The tribunal found that the address used for correspondence in the appeal filed in 2004 was the same as the one disclosed in the subsequent appeal. Therefore, the tribunal held that the delay could not be condoned, and the application was dismissed.