2016 (10) TMI 386 - HC - Central Excise

Condonation of delay - Section 35G of the Central Excise Act, 1944 - delay of 171 days in filing appeal due to father s ill health and the appellant being a small contractor had no support staff to look after the day to day affairs of the unit - Held that - It is evident from the order passed by the Tribunal that the petitioner s father was not hospitalised even for a single day in the months of January, March, April and June 2014. Even in the months of February, May and July, 2014 the appellant s father was hospitalised only for 4, 8 and 6 days respectively. In all, the hospitalisation was only for 18 days. It is not even the appellant s case before the Tribunal that, because of his father s ailment, he did not execute any work or that he did not attend office during this period of more than six months. The finding recorded by the Tribunal, that no sufficient cause was shown, and the belated filing of the appeal showed negligence and carelessness on the part of the appellant, does not suffer from any infirmity, much less one which gives rise to a substantial question of law necessitating interference in an appeal filed under Section 35G of the Act - delay not condonable - appeal rejected - decided in favor of Revenue.

Summary

Issues: Appeal against delay in filing, Condonation of delay, Negligence and carelessness in filing appeal, Substantial question of law

Appeal against delay in filing:
The appeal was filed under Section 35G of the Central Excise Act, 1944, challenging the order of the CESTAT which rejected the appellant's application to condone a delay of 171 days in filing the appeal against the order passed by the Commissioner (Appeals) dated 30.04.2013. The appellant claimed to have received a copy of the order on 26.12.2013 and computed the delay from that date, not from the date of the original order.

Condonation of delay:
The appellant contended before the Tribunal that the delay in filing the appeal was due to his father's illness and hospitalization. The appellant's father was admitted to the hospital for a total of 18 days in three different spells in February, May, and July 2014. However, the Tribunal found that the hospitalization of the appellant's father did not provide sufficient cause for the delay of 171 days in filing the appeal. The Tribunal concluded that the delay showed negligence and carelessness on the part of the appellant.

Negligence and carelessness in filing appeal:
The Tribunal noted that the appellant's father was not hospitalized for a single day in January, March, April, and June 2014. Even in the months of February, May, and July 2014, the hospitalization was only for 18 days in total. The appellant did not demonstrate that his father's ailment prevented him from executing work or attending the office during the period of delay. The Tribunal found that the belated filing of the appeal exhibited negligence and carelessness on the part of the appellant.

Substantial question of law:
The High Court, in considering the appeal, emphasized that its jurisdiction under Section 35G of the Act was limited to entertaining appeals where a substantial question of law arises. The Court clarified that the Tribunal is the final court of fact, and interference in an appeal under Section 35G is warranted only if there is a finding based on no evidence or one that is perverse. As the Tribunal's finding that no sufficient cause was shown for the delay did not give rise to a substantial question of law, the High Court dismissed the appeal.

In conclusion, the High Court dismissed the appeal against the delay in filing, emphasizing that the negligence and carelessness displayed by the appellant in filing the appeal did not warrant interference under Section 35G of the Central Excise Act, 1944. The Court highlighted that the hospitalization of the appellant's father did not provide sufficient cause for the significant delay in filing the appeal, ultimately leading to the dismissal of the appeal and related miscellaneous petitions.