2016 (10) TMI 574 - HC - Central Excise

Condonation of delay - Held that - a fair chance is required to be given to the petitioner to see that his appeal before the Tribunal be disposed of and dealt with on its own merits in accordance with law, more particularly, when the learned advocate has drawn the attention of this Court that requirement of deposit of 10% is already fulfilled while presenting an appeal - Decided against the assessee

Summary

Issues:
1. Challenge to order passed by the Tribunal for seeking condonation of delay in filing an appeal.
2. Request to quash and set aside the order passed by the Commissioner (Appeals).
3. Interpretation of the provision of mandatory deposit of 10% of confirmed duty under section 35F of the Central Excise Act, 1944.
4. Consideration of the case on merit and technicality in granting stay.

Detailed Analysis:
1. The petitioner filed a petition challenging the order passed by the Tribunal for seeking condonation of delay in filing an appeal against the order passed by the Commissioner (Appeals). The petitioner cited financial constraints as the reason for not meeting the mandatory requirement of depositing 10% of the duty while preferring the appeal. The petitioner highlighted similar cases where the Tribunal had granted stay and entertained appeals. Reference was made to a Supreme Court decision and the deposit of the required amount was made before the Tribunal. Despite this, the Tribunal refused to condone the delay in filing the appeal.

2. The Court observed that the Tribunal should have considered the case of the petitioner and condoned the delay. The petitioner argued that other assesses had been granted unconditional stay even after the introduction of the amended section 35F. It was contended that there was a strong case on merit and requested the court not to dispose of the case on technical grounds.

3. The respondent's advocate argued that the provisions of the Act must be followed and defended the Tribunal's decision, stating that no error was committed warranting interference from the Court.

4. After hearing both sides, the Court decided that the petitioner should be given a fair chance to have the appeal heard on its merits. Since the mandatory deposit of 10% had been fulfilled, the Court quashed the Tribunal's order and allowed the petitioner to deposit the required amount. The appeal was to be considered on its merits in accordance with the law. The Court emphasized the need for the appeal to be dealt with expeditiously and on merit.

In conclusion, the Court allowed the petition to the extent mentioned above and directed the Tribunal to handle the appeal on its merits promptly and in compliance with the law.