2012 (8) TMI 440 - AT - Central Excise

Condonation of delay of 11 years 2 months in filing appeal - Held that - The reason shown as pursuing the wrong remedy by filing a Review Application before the Commissioner (Appeals) in spite of being guided in the preamble to the Order-in-Appeal resulting into an inordinate delay is not a sufficient cause warranting condonation - assessee could not able to show their bonafideness nor could able to demonstrate sufficient cause for condonation of delay - against assessee.

Summary

Issues:
Condonation of delay in filing the appeal based on wrong remedy pursued before the Commissioner (Appeals).

Analysis:
The appellant sought condonation of delay of about 11 years and 2 months in filing the present appeal due to pursuing a wrong remedy by filing a review application before the Commissioner (Appeals). The appellant received the Order-in-Appeal on 6th February, 2001, filed a review application on 24th February, 2001, and later filed an appeal before the Tribunal. The Tribunal dismissed the appeal as non-maintainable, leading to the present appeal for condonation of delay. The appellant argued that the delay was due to pursuing the wrong remedy, which was not prescribed under the Central Excise Act, 1944. The appellant cited various judgments to support the condonation of delay.

Analysis:
The Revenue contended that the review application filed by the appellant against the Order-in-Appeal could not be considered a bonafide approach as the remedies for aggrieved persons were clearly enumerated in the preamble of the Order-in-Appeal. The Revenue highlighted that the Tribunal had previously not condoned the delay application and dismissed the appeal as not maintainable. The Revenue argued that the case laws cited by the appellant were not applicable to the present case.

Analysis:
After hearing both sides and examining the records, the Tribunal found that the appellant did not dispute the date of receipt of the Order-in-Appeal and that the Order-in-Appeal did not provide for filing a review application before the Commissioner (Appeals). The Tribunal emphasized that the appellant should have been aware of the provisions of law to pursue the remedy before the Tribunal if aggrieved. The Tribunal referred to the principle of condonation of delay established by the Supreme Court, stating that delay could be condoned if sufficient cause is shown. However, in this case, the Tribunal found that the appellant failed to demonstrate bonafideness or sufficient cause for condonation of the 11-year delay caused by pursuing the wrong remedy. The Tribunal concluded that the delay was not a sufficient cause warranting condonation and dismissed the application, consequently dismissing the appeal as well.