2018 (12) TMI 337 - AT - Central Excise

Condonation of delay of 215 days in filing appeal - no proper justification given for such delay - difference of opinion - Held that - As there is difference of opinion, matter is referred to Third Member for resolving the Difference of Opinion on the issue Whether the delay has to be condoned subject to imposition of cost of ₹ 2000/- as held by the Member (Judicial) or the Condonation of Delay has to be rejected as the appellant has not given plausible and just explanation explaining the delay in filing the appeal, and consequently, the appeal is to be rejected as barred by limitation.

Summary

Issues involved:
Delay in filing the appeal - 215 days, condonation of delay, absence of day-to-day explanation for the delay, imposition of cost, disagreement between members, reference to Third Member.

Analysis:
The judgment involves the issue of condonation of delay in filing an appeal due to the appellant attributing the delay to a former employee not informing the management about the Order-in-Appeal. The appellant discovered the order when approached for recovery of dues in December 2017 and filed the appeal on 25.03.2018. The Tribunal considered various Supreme Court decisions emphasizing a liberal approach in condoning delays and the need for a reasonable explanation for each day of delay. The Tribunal noted the absence of detailed information regarding the employee's departure and the subsequent procurement of the order copy. Despite this, considering the appellant's right to challenge the order, the nominal amount involved, and the prima facie merits of the case, the Tribunal decided to condone the delay, subject to the appellant paying a cost.

Another issue raised was the lack of evidence from the Revenue regarding the dispatch of the order or the date of its receipt by the appellant. As the amount involved was minimal, the Tribunal imposed a cost on the appellant, which had to be paid within a specified period for the delay to be condoned.

However, a disagreement arose between the Members regarding the condonation of delay. One Member disagreed with the decision, citing the absence of a complete day-to-day explanation for the delay, as required by previous Supreme Court decisions. This Member emphasized the importance of providing detailed reasons for the delay and the necessity of supporting affidavits. The Member highlighted that filing an appeal is not an absolute right and must be within the prescribed limitation period. In the absence of a justifiable cause for the delay, supported by necessary documents, the Member suggested dismissing the Condonation of Delay application and consequently the appeal.

Due to this difference of opinion, the matter was referred to the Hon'ble President for consideration and potential resolution by a Third Member. The key question for the Third Member was whether the delay should be condoned with the imposition of a cost, as suggested by one Member, or if the lack of a plausible and justifiable explanation for the delay should lead to the rejection of the Condonation of Delay application and the appeal on the grounds of being time-barred.