2017 (9) TMI 351 - HC - Central Excise

Condonation of delay in filing appeal - Section 35G of the Central Excise Act, 1944 - rejection to condone delay on the ground of jurisdiction and also on the ground that no explanation was given for the delay in filing the appeal after December, 2015 - Held that - Sub-Section (3) of Section 35B of the Act provides that every appeal under this section shall be filed within 3 months from the date on which the order sought to be appealed against is communicated to the party concerned - The aforesaid provisions do not lay down any limitation on the power of the CESTAT to condone the delay of more than 30 days in filing the appeal rather it is open to the CESTAT to condone the delay in filing the appeal irrespective of the length of delay. - In view of the conjoint reading of Sub-Sections (3) and (5) of Section 35B of the Act it is implicit that the CESTAT does not lack in jurisdiction to condone the delay even of more than 30 days in the filing of the appeal - answered in favor of assessee. Reason for delay not given - Held that - as there is no dispute to the fact that the ownership of the appellant was in transition, the new management had filed the appeal promptly without wasting unnecessary time and that the delay if any on its part is not deliberate or smacks of mala fides, the CESTAT probably took too technical a view in refusing to condone the delay - The facts and circumstances of the case establishes a sufficient good cause for condoning the delay as it is not necessary to explain even each days delay - decided in favor of assessee. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Refusal to condone delay in filing the appeal by CESTAT.
2. Justification of CESTAT's decision regarding the delay in filing the appeal.

Analysis:
1. The appeal was filed under Section 35G of the Central Excise Act, 1944 against the order of the CESTAT dated 04.10.2016, which dismissed the appeal as barred by limitation. The appellant received the order on 07.10.2014 but filed the appeal on 13.05.2016, causing a delay of 493 days. CESTAT refused to condone the delay citing lack of jurisdiction for delays over 30 days and absence of explanation for the delay post-December 2015.

2. The appellant argued that the delay was due to the transition in ownership/management, where the new management was unaware of the order until December 2015. The appellant's counsel contended that the delay was not deliberate but due to the previous officer's failure to inform the new management. The appellant had filed three earlier appeals on time, and hence, requested the present appeal to be entertained after condoning the delay.

3. The court examined Section 35B of the Act, which mandates a three-month limitation for filing appeals, extendable if sufficient cause is shown. It was clarified that CESTAT has the power to condone delays beyond 30 days, as per Sub-Sections (3) and (5) of Section 35B. The court held that CESTAT did not lack jurisdiction to condone delays exceeding 30 days, ruling in favor of the appellant on this issue.

4. Regarding the second issue, the court emphasized that limitation rules aim to prompt legal remedies without prolonging disputes indefinitely. The court stressed a liberal approach to condoning delays to uphold the cause of substantial justice. Referring to the N. Balakrishnan case, the court highlighted that delays are not always deliberate, and a reasonable cause should be considered for condonation.

5. Given the circumstances of the case, where the delay was not deliberate, and the new management promptly filed the appeal upon becoming aware of the order, the court found CESTAT's refusal to condone the delay overly technical. The court concluded that the facts established a valid reason for condoning the delay, emphasizing that it is not necessary to explain each day's delay. Consequently, the court ruled in favor of the appellant on the second issue as well.

6. The court ultimately allowed the appeal, directing CESTAT to decide the case on its merits. The delay in filing the appeal was condoned, emphasizing the importance of considering the circumstances and advancing substantial justice in legal proceedings.