2015 (5) TMI 561 - AT - Central Excise

Condonation of delay - Inordinate delay of 293 days in filing the appeal - Held that - Reason for delay, according to the appellant, is that at that time, a new Asstt . Manager (Commercial), Shri Sandeep Berry had joined as the earlier Assistant Manager (Commercial), Shri R.P. Gupta has resigned from the services w.e.f . 8.8.2013 and the new person, Shri Sandeep Berry sent these papers to Ms. Shruti Kakar , Legal Manager and both of them by mistake treated the order a show cause notice and they did not take any action for filing the appeal. From the circumstances of the case, it is seen that there was no reason for the appellant in delay of filing of the appeal, as the appellant had been granted unconditional stay in respect of the appeal against the order-in-original dated 8.8.2012 and because of the delay in filing of the appeal against the order-in-original dated 26.08.2013, they had to pay mandatory pre-deposit of 7.5 % under the amended provisions of Section 35 F. In these circumstances, we are of the view that the delay in filing of the appeal was due to bona fide mistake on the part of the appellant's employees - Decision in the case of N. Balakrishnan (1998 (9) TMI 602 - SUPREME COURT OF INDIA) would be applicable - Delay condoned.

Summary

Issues:
1. Condonation of delay in filing the appeal against the Commissioner's Order dated 26.08.2013.
2. Whether the delay in filing the appeal was due to a bona fide mistake.

Analysis:
1. The appeal was filed against the Commissioner's Order confirming a duty demand of Rs. 4.52 crores, with interest and penalty under Section 11 AC. The application for condonation of delay was filed due to a delay of 293 days in filing the appeal. The appellant had complied with the provisions of Section 35 F by paying 7.5% of the duty demand. The issue revolved around whether Masala Mix prepared by the appellant for namkeens manufacturing attracted central excise duty. The appellant argued the delay was due to a genuine misunderstanding as the order was mistakenly considered a show cause notice. The Departmental Representative opposed the delay condonation citing the appellant's legal department's responsibility. The Tribunal considered the facts and previous appeals filed in time, concluding the delay was a bona fide mistake by the appellant's employees. The delay of 293 days was condoned, and the COD application was allowed for further hearing.

2. The Tribunal noted that previous appeals had been filed in time, and the delay in the current appeal was attributed to a new Assistant Manager and Legal Manager mistakenly treating the order as a show cause notice. The appellant had been granted unconditional stay in a previous appeal, indicating no intentional delay. The Tribunal found the delay was not intentional but due to a genuine misunderstanding, aligning with the principle from the Supreme Court's judgment in N. Balakrishnan Vs. M. Krishnamurthy. As the delay was considered bona fide, the Tribunal decided to condone the delay of 293 days and allowed the appeal to proceed for further hearing along with other related appeals.