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2010 (6) TMI 239 - AT - Central ExciseLimitation- Delay of three years and seven months in filing. For the purpose of condonation appellant produced contemporaneous evidence by way of copies of demand draft of Rs. 1000 and Rs. 500 taken by them on 29.09.2006 from ICICI Bank in favour of Assistant Registrar. Applicant intended to file appeal on 30.09.2006 and only because of some oral direction given to them, they promptly filed revision application before Central Government. Held that- Applicants were serious in pursuing the remedy through before wrong forum. Since applicants have bona fidely acted based on oral advice given by personnel registry, their substantive right to pursue appellate remedy should not be denied.
Issues:
Delay in filing appeal before CESTAT after order of Commissioner (Appeals) - Condonation of delay. Analysis: The judgment deals with an application for condonation of delay in filing an appeal before the CESTAT against the order of the Commissioner (Appeals) dated 28-7-06, which was filed on 26-2-2010 after a delay of about 3 years and 7 months. The applicant submitted that they received the order of the Commissioner (Appeals) on 7-8-06, prepared the appeal memoranda and stay petition, and even took drafts for the filing fee. They were orally advised by the registry to file a revision application instead of an appeal before the Tribunal. Consequently, they filed a revision application before the Central Government on 30-10-06, which was rejected on 3-12-2009 for want of jurisdiction. The delay was attributed to the wrong direction received from the registry, and the applicant genuinely believed they were pursuing the appropriate remedy. The applicant relied on the decision of the Hon'ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy, emphasizing that as long as sufficient cause is shown for the delay, it should be condoned. The SDR opposed the application, highlighting that the preamble to the order of the Commissioner (Appeals) clearly indicated that the appeal lies before CESTAT. The SDR also contested that no evidence was presented regarding the advice from the registry personnel or the alleged return of the appeal. The SDR argued that the delay was unreasonably long and should not be condoned. However, the Tribunal carefully considered the submissions from both sides. While acknowledging the significant delay, the Tribunal noted that valid reasons must be provided for condonation. The applicant presented contemporaneous evidence in the form of demand drafts taken from ICICI Bank on 29-9-06, indicating their intention to file the appeal on 30-9-06. The Tribunal found this evidence compelling, supporting the claim that the delay was due to the oral advice received. Despite filing the appeal before the wrong forum, the applicants' genuine pursuit of remedy based on the advice from the registry personnel was considered. Citing the decision in N. Balakrishnan v. M. Krishnamurthy, the Tribunal concluded that the delay should be condoned, as the applicants acted in good faith based on the advice received. Therefore, the Tribunal decided to condone the delay in filing the appeal, ultimately allowing the application.
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