2013 (10) TMI 28 - HC - Central Excise

Condonation of Delay - Whether CESTAT was correct in not exercising its powers vested in Section 35B of the Central Excise Act, 1944 in condoning the delay permitting the appellant to defend the case Held that - Since delay was of 142 days and the appellant was under bona fide belief that if M/s. Gujarat Cypromet Limited has filed its reply to the show cause notice then case will be covered and he was not required to file any separate reply to the show cause notice - Further once the penalty was imposed, appeal was filed with delay which was condoned - Therefore, even if there was 142 days delay for filing appeal before the tribunal, it ought to have been condoned - the delay of 142 days in filing the appeal was condoned and the matter was remitted back to the Tribunal for deciding the tax appeal on merits.

Summary

Issues:
Delay in filing appeal before the Tribunal, condonation of delay, substantial question of law regarding exercising powers under Section 35B of the Central Excise Act, 1944.

Delay in filing appeal before the Tribunal:
The appellant, a partner of a transporter firm, filed an appeal beyond the prescribed limitation period of 142 days. The appellant believed that since the firm had already filed a reply to the show cause notice, he was not required to file a separate reply. The adjudicating authority levied a penalty against the appellant despite this belief. The Tribunal did not initially condone the delay in filing the appeal. However, the High Court noted that the appellant acted in good faith and that the delay should have been condoned. The High Court, therefore, decided in favor of the appellant, condoning the delay and remitting the matter back to the Tribunal for a decision on the tax appeal on its merits.

Condonation of delay:
The High Court considered the delay of 142 days in filing the appeal before the Tribunal. Despite the delay, the Court found that the appellant had a genuine belief that his response was covered by the firm's reply to the show cause notice. The Court also noted that once the penalty was imposed, the delay in filing the appeal was eventually condoned. The Court held that the delay should have been condoned from the outset, as the appellant's belief was reasonable. Consequently, the High Court decided in favor of the appellant, condoning the delay and sending the matter back to the Tribunal for a decision on the tax appeal.

Substantial question of law regarding exercising powers under Section 35B of the Central Excise Act, 1944:
The High Court framed a substantial question of law related to whether the CESTAT in Ahmedabad was correct in not exercising its powers under Section 35B of the Central Excise Act, 1944 to condone the delay and allow the appellant to defend the case. The Court, after hearing arguments, found that the delay should have been condoned due to the appellant's genuine belief and remitted the matter back to the Tribunal for a decision on the tax appeal on its merits. The Court decided in favor of the appellant against the department, emphasizing the need to consider the circumstances and the bona fide belief of the appellant in such cases.

Conclusion:
The High Court, after considering the facts and arguments presented, decided in favor of the appellant, condoning the delay of 142 days in filing the appeal before the Tribunal. The Court emphasized the appellant's genuine belief and remitted the matter back to the Tribunal for a decision on the tax appeal on its merits. The tax appeal was accordingly disposed of in favor of the appellant.