2019 (6) TMI 879 - HC - Central Excise

Condonation of delay of 188 days in filing appeal - delay on the ground of medical reasons - HELD THAT - The Paediatric Surgeon is also a qualified doctor and is competent to issue a certificate with regard to a person suffering from back pain and advise a patient to take rest. No bar in terms of Medical Council Rules or otherwise is relied upon to disregard the view of the medically qualified person. It is true that if on these facts, the appellant had shown himself to a specialist, dealing with back pain and produced a certificate in support thereof, the Tribunal may have been satisfied with the evidence in support. The condonation of delay can only be allowed on payment of costs. This for the reason that on facts, the view taken by the Tribunal is a plausible view and we would not have interfered. But only to ensure that justice is done, we are interfering. Thus, to balance the right and equity while considering the delay, we direct the appellant to pay a cost of ₹ 20,000/to the Commissioner of Central Excise within a period of two weeks from the date on which the order is uploaded. The impugned order be set aside and the appeal is restored to the Tribunal for fresh disposal.

Summary

Issues:
Challenge to order of Customs, Excise and Service Tax Appellate Tribunal regarding delay in filing appeal before it.

Analysis:
The appellant challenged the Tribunal's order dismissing the appeal due to a delay of 188 days in filing the appeal. The main issue was whether the delay was justified and whether the reasons provided for the delay were genuine. The Tribunal doubted the genuineness of the reasons for delay as the medical certificate produced by the appellant was from a Paediatric surgeon, leading to dismissal of the appeal. The High Court noted that the facts in this case were identical to a previous order where the delay was condoned on payment of costs. The High Court emphasized that a more liberal approach should be adopted in such matters and that if the reasons for delay are plausible and not alleged to be untrue, justice requires condoning the delay and considering the issue on merits.

The High Court, in line with its previous order, set aside the impugned order and restored the appeal to the Tribunal for fresh disposal, subject to the condition that the appellant pays a cost of ?20,000 to the Commissioner of Central Excise within two weeks. The Court highlighted that the Paediatric Surgeon was qualified to issue a certificate regarding back pain and rest advice, and there was no reason to disregard the medical opinion. The Court balanced the rights and equity by allowing the condonation of delay on payment of costs, ensuring that justice is done. If the cost is not paid within the stipulated period, the appeal would stand dismissed without further reference to the Court.

In conclusion, the High Court admitted the appeal on the substantial question of law regarding the delay in filing the appeal and disposed of the appeal by setting aside the impugned order and restoring it to the Tribunal for fresh disposal upon payment of costs. The Court emphasized the importance of adopting a liberal approach in such cases and ensuring justice is served while balancing the rights of the parties involved.