2017 (12) TMI 601 - AT - Central Excise

Condonation of delay in filing appeal - the appellant never informed the department about change of address after closing of the factory - Held that - a person cannot take advantage of his wrongs as per the maxim COMMODUM EX INJURIA SUA MEMO HABERE DEBET - the assessee-appellant has never informed the department about the change of address. Earlier also appellant was not serious about the show cause notice. There is no proper explanation in the present case, so as per Section 5 of the Limitation Act, 1963, the delay of about nine years cannot be condoned - the delay of nine years in the instant case is without proper explanation - application for condonation of delay dismissed - decided against appellant.

Summary

Issues:
1. Condonation of delay in filing appeals due to non-receipt of order.
2. Duty of department to search for new address of appellant.
3. Application for condonation of delay and appeals' maintainability.

Analysis:
1. The appeals were filed by the appellant after a delay of about nine years, claiming non-receipt of the order as the reason for delay. The appellant's counsel stated that the order was received in 2016, and after receiving a certified copy of the order, the appeal was filed within the stipulated period. The counsel also mentioned the closure of the factory and the department's duty to search for the appellant's new address. The department's representative highlighted the search at the business premises, issuance of show cause notice, and the appellant's request for inspection of seized documents. The Tribunal observed that the appellant failed to inform the department about the change of address, showing lack of seriousness towards the show cause notice.

2. The Tribunal considered the principle that a person cannot benefit from their own wrongs, citing the maxim COMMODUM EX INJURIA SUA MEMO HABERE DEBET. Referring to the case law of Mrutunjay Puri Vs. Narmada Bala Sasmel, it was emphasized that proper explanation is necessary for condonation of delay. The Tribunal noted that the appellant's failure to inform about the change of address and lack of seriousness towards the notice led to the rejection of the application for condonation of delay. Relying on the Apex Court's decisions in cases like Calcutta Municipal Corporation Vs. Pawan Kumar Saraf, the Tribunal held that the delay of nine years could not be condoned under Section 5 of the Limitation Act, 1963.

3. The Tribunal, after considering the submissions and precedents, concluded that the delay of nine years lacked a proper explanation. Citing judgments like Leelawanti Vs. State of Haryana and Oriental Traders Pvt. Ltd. Vs. ITO, the Tribunal rejected the application for condonation of delay. Consequently, the appeals were deemed not maintainable, and both the application and appeals were dismissed. The decision was pronounced in an open court session, emphasizing the importance of timely compliance with legal procedures in such matters.