2013 (2) TMI 277 - AT - Central Excise

Condonation of Delay - Evasion of central excise duty - undervaluation of goods and clandestine clearance of prime quality of ply wood in the garb of defective and second quality - delay of 3187 days in filing appeal - Held that - The Appellant, though mentioned the delay of 3187 days have not furnished the detailed date chart explaining such inordinate delay, leave aside the day wise explanation of the delay even they failed to explain the month wise delay. Delay can be condoned only when the approach of the litigant is bonafide and not on account of culpable negligence or on account of deliberate in action or bonafide approach. In the present case, though the show cause notice was issued in 1985 and adjudicated in the year, 1990, the Appellant approached the Hon ble Gauhati High Court between 1990 and 2006, by filing three Writ Petitions knowing fully well that statutory remedy is always available to them and had they pursued the same the proceeding would have been concluded by now. For this reason the Hon ble Gauhati High Court dismissed their writ petition twice i.e. on 1996 with a cost of Rs.5000/- and 2006. Therefore, the plea of their filing appeal before the Hon ble High Court on a wrong belief, cannot be acceptable. As during the pendency of their writ appeal, they filed the statutory Appeal before this Tribunal on being advised by their advocate in Sep.2010, but consequently, from the record it seems that they did not bring this fact to the notice of the Hon ble High Court nor they withdrew their Writ Appeal from the High Court informing the High Court about it thus no proof to warrant that their conduct that their approach and attitude has been bonafide. Aslo while filing the condonation application on 20.09.2010 along with the Appeal, they had neither indicated the number of days delay nor stated the reasons thereof making it vague and keeping their all options open. Looking into the delay in the proceeding which is now almost 27 year caused due to the Appellant s non-cooperation in the proceeding, no merit on the reasons/grounds advanced by the Applicant through their affidavit to condone the delay of 3187 days - Stay Petition stands disposed of.

Summary

Issues:
Delay in filing appeal before the Tribunal seeking condonation.

Analysis:
The appellant sought condonation for delay in filing their appeal against an Order-in-Original from 2001. The history of the case dates back to 1985 when a show cause notice was issued for undervaluation of goods and evasion of central excise duty. Despite multiple legal actions, including writ petitions and appeals, the demand and penalty were confirmed in 2001 by the Commissioner of Central Excise, Shillong.

The appellant's reasons for the delay included the closure of their plywood factory due to a force majeure situation in 1996, the company being declared sick by BIFR, key personnel leaving, and management challenges due to the demise of the Chairman and ill-health of the Managing Director. The delay was explained as not deliberate or due to negligence. The appellant also cited a judgment from the Gauhati High Court in support of their argument.

During the hearing, the appellant explained that they were advised to file an appeal before the Tribunal while a writ appeal was pending before the High Court. However, the Department argued that the appellant had engaged in delaying tactics for over 27 years by filing multiple writ petitions instead of pursuing the statutory remedy available under the Central Excise Act, 1944.

The Tribunal noted that while a delay of 3187 days was mentioned, a detailed explanation or date chart for the delay was not provided. The principle of condonation of delay requires a bonafide approach, and the appellant's conduct did not demonstrate a sincere intent to conclude the proceedings. The Tribunal found that the appellant's actions lacked bonafide and dismissed the Miscellaneous Application and the Appeal, along with disposing of the Stay Petition.

In conclusion, the Tribunal held that the appellant failed to show sufficient cause for condoning the inordinate delay in filing the appeal. The judgment was pronounced on 27.9.2012.