2017 (1) TMI 1068 - AT - Central Excise

Condonation of delay of 676 days - the delay in filing the appeals was unintentional and attributable to the wrong legal advice of the applicant s counsel - Held that - during the relevant period, on similar issues the applicant has been pursing cases before the Tribunal, the details of which has been filed by the learned AR. I also find letters dated 4.4.2014 and 29.5.2014 written by the department to the applicant for recovery of arrears but the applicant instead of filing appeals thereafter immediately simply deposited the interest and asked the department to close the matter. Further, I also find that the applicant chose to file the appeals only when the recovery was sought to be effected - there is a gross negligence on the part of the applicant and I do not find it a fit case to condone the inordinate delay of 676 days - delay not condoned - appeal dismissed - decided against appellant.

Summary

Issues:
Delay in filing appeals before the Tribunal; Condonation of delay; Negligence on the part of the applicant; Legal advice leading to delay.

Analysis:
1. The applicants filed two appeals against Order-in-Appeal No.718/2013-CE and Order-in-Appeal No.722/2013-CE passed by the Commissioner of Central Excise (Appeals), Bangalore. The issue in both appeals pertained to the demand of CENVAT credit wrongly availed but reversed prior to utilization. The applicants sought condonation of delay of 676 days in filing the appeals before the Tribunal. They claimed the delay was unintentional and attributed it to wrong legal advice received from their counsel. The counsel advised the applicants to deposit interest after the CENVAT credit reversal, which they did, but later penalties were imposed, prompting the filing of appeals. The applicants argued for condonation of delay based on the merits of their case and cited relevant legal precedents to support their plea.

2. The learned AR opposed the applications seeking condonation of delay, emphasizing the significant delay of 676 days without sufficient reasons provided by the applicants. The AR highlighted that the applicants, a public sector undertaking, had multiple legal cases pending before the Tribunal and had ample resources to handle legal matters promptly. It was noted that the applicants had not filed the appeals despite receiving similar orders on the issue earlier and only did so when penalties were imposed. The AR presented details of cases on similar issues disposed of by the Tribunal during the relevant period to question the delay and lack of justification provided by the applicants.

3. After evaluating the submissions from both parties and reviewing the case records, the Judicial Member found gross negligence on the part of the applicants in pursuing the appeals. Despite receiving the impugned order in early 2014, the applicants delayed filing the appeals until 2016, only after penalties were demanded. The Judicial Member noted that similar cases were being contested by the applicants before the Tribunal during this period, indicating a lack of diligence in addressing the present appeals. Considering the circumstances, the Judicial Member concluded that the delay of 676 days could not be condoned due to the applicants' negligence. Consequently, both applications seeking condonation of delay were dismissed, leading to the dismissal of both appeals.

This comprehensive analysis of the judgment highlights the key issues, arguments presented by both parties, and the reasoning behind the decision to dismiss the appeals due to the inordinate delay and negligence on the part of the applicants.