2017 (11) TMI 439 - HC - Central Excise

Condonation of delay in filing appeal - whether an appeal which was filed on 2nd September, 2008 was not moved for almost 9 years therefore, condonation of delay application where the notice was not issued by the department for almost 8 years, the delay should be considered from the date of judgment or from date of receipt of the order or from the date of dismissal by Delhi High Court judgment or from the knowledge of judgment to the respondent? - The ground which has been given for condonation of delay was that the counsel for Delhi was not well and the party s main partner of Director of the company was busy with the sickness of the family on personal affidavit which he has said in the rejoinder. Held that - It is true that the original record was not available and application was moved after we have passed an order on 1st May, 2017 to reconstruct the matter - From the record, it is very clear that the matter was not admitted and even on delay condonation application notice was not issued and the application was moved in 2008 - While going through the tax matter it is always the great concern from the court in excise department when it is a question of refund of Cenvat Credit, the court has to be very gracious in the matter. If the litigation is really genuine, the matter requires immediate attention and moving the matter in 2004 and order filed in 2008 not moving for 8 years, the court has to be very slow and has no choice in the proceedings on the matter of delay condonation application. In our considered opinion, 2004 order even if we take from the Delhi High Court judgment, there is a delay of one year one month seven days which is very serious in nature when for explanation for the same is not there and application was moved after 9 years which further added fuel to the fire. The condonation of delay application though Mr. Ranka has submitted that the gross delay of more than 10 years is required to be accepted, we are not inclined to grant the delay condonation application looking to the bona fides the same requires to be rejected - In that view of the matter, since the file was reconstituted after order of 1st May, 2017, we are not inclined to grant the application u/s 5 of the Limitation Act. We are not considering the matter on merits only on the ground of lethargic approach of the parties and negligence in the matter and throwing everything on the office of the High Court is not proper. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Entitlement to avail Cenvat Credit under Cenvat Credit Rules, 2001.
2. Delay in filing the appeal and condonation of delay.
3. Jurisdictional issues and procedural lapses.

Detailed Analysis:

1. Entitlement to Avail Cenvat Credit:
The core issue revolves around whether the appellant was entitled to avail Cenvat Credit under the Cenvat Credit Rules, 2001, for the duty paid on blades used in manufacturing razors, which were cleared on MRP basis under Section 4A of the Central Excise Act, 1944. The Tribunal's decision highlighted that the razors were marketed with free blades, and no duty would be payable on the razors if credit for the blades was given. The Tribunal concluded that there was no value addition by the input (blades), making the newly manufactured item (razors) effectively tax-free.

2. Delay in Filing the Appeal and Condonation of Delay:
The appeal, initially filed on 2nd September 2008, faced a significant delay. The original decision by the Tribunal was made in 2004, and the appeal was mistakenly filed before the Delhi High Court in 2005, which dismissed it on jurisdictional grounds in 2007. The Rajasthan High Court noted the delay of 1175 days and the appellant's contention that the delay was due to a bona fide mistake and procedural lapses. The appellant argued that the delay should be condoned based on precedents where the Supreme Court emphasized deciding cases on merits rather than dismissing them for procedural delays, especially when substantial justice is at stake.

3. Jurisdictional Issues and Procedural Lapses:
The appeal was initially filed in the wrong jurisdiction, leading to its dismissal by the Delhi High Court. The appellant then filed the appeal in the Rajasthan High Court, which faced further procedural delays. The Court noted that the delay in moving the appeal was not adequately explained, and the appellant's approach was lethargic and negligent. The Court emphasized that it is the litigant's responsibility to ensure timely progression of their case, not the court's office.

Conclusion:
The Court, after considering the significant delay and the lack of sufficient cause for such delay, decided not to condone the delay. The application under Section 5 of the Limitation Act was dismissed, and consequently, the appeal was also dismissed. The Court highlighted the importance of timely and diligent prosecution of appeals, especially in tax matters where substantial stakes are involved.