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TMI Blog2009 (7) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... ,068/- for the year 1995-96 and 1996-97 should not be demanded from them on the allegation that they had suppressed the production of sulphuric acid and alum ferric falling under Chapter 28 of the First Schedule of the Central Excise Tariff Act, 1985 and that the same was revealed from the balance sheets for the year 1995-96 and 1996-97 vis- -vis production reported in the statutory records maintained by the appellants. Another show cause notice dated 14-12-2001 demanding duty to the tune of Rs. 11,09,068/- came to be issued, though, the same was subsequently withdrawn under letter dated 21-2-2002. The appellant did not file any reply to either of the show cause notices dated 13-3-2001 or dated 14-12-2001. Consequent to the withdrawal of show cause notice dated 14-12-2001, and in view of failure on the part of the appellants to file reply to the show cause notice, the adjudicating authority while allowing the request made by the appellants under letter dated 28-3-2001 granted further time to the appellants to file the reply. However, the appellants did not avail the said opportunity and did not file the reply. In spite of that there was reminder sent by the adjudicating authority u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only thereafter, that is, on 1-7-2003 the appeal could be filed. Meanwhile the papers relating to the copy of the order of the adjudicating authority were misplaced in the office of the Advocate for the appellants and therefore there was delay of about four months in filing the appeals. On the other hand, it is the case of the respondents that the Commissioner (Appeals) could condone the delay to the extent of 30 days beyond the prescribed period of limitation for filing the appeals and therefore, there was no occasion for the Commissioner (Appeals) to condone such a long period of delay and the law in that regard is well settled by the decision of the Hon ble Supreme Court. 7. Learned Advocate for the appellants while relying upon the decisions in the matter of Banshidhar Sewbhagovan Co. v. Collector of Central Excise reported in 1990 (50) E.L.T. 192 (S.C.), Jamuna Industries v. CCE, Jaipur-II reported in 2002 (148) E.L.T. 1144 (Tri.-Del.), Pijush Kanti Nath v. CC (Prev.) W.B. reported in 2002 (149) E.L.T. 479 (Tri.-Kolkata), Coronation Spinning India v. CC, Calcutta reported in 1999 (113) E.L.T. 376 (S.C.), SAP India Sys. Applications Products in Data Processing P. Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient cause for condonation of delay and in that regard it is not the case of the appellants that there is arbitrary exercise of the jurisdiction by the authority. Besides, considering the decision of the Apex Court in the matter of Singh Enterprises v. CCE, Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.), no fault can be found with the impugned order refusing the condonation of the delay. He further submitted that the materials placed on record do not justify condonation of delay of undue long period of four months. 9. Undoubtedly, the Apex Court in Singh Enterprises case while dealing with the scope of powers of the Commissioner (Appeals) under Section 35 of the Central Excise Act, 1944 had ruled that the proviso to sub-section (1) of Section 35 makes it crystal clear that the Commissioner (Appeals) has no power to allow the appeal to be presented beyond the period of ninety days. It was clearly held that- 8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is a matter of fact that the Hon ble High Court of Punjab and Haryana while exercising the power under Article 226 of the Constitution issued specific direction to the concerned authorities. It is also apparent that the decision of the Apex Court in Singh Enterprises (supra) was delivered after the directions were issued by the Hon ble High Court of Punjab and Haryana in the matter in hand. At the same time, though the respondent have sought to challenge the order of the High Court before the Apex Court, admittedly, the Department has not been able to get any stay to the order passed by the Hon ble High Court of Punjab and Haryana. In these circumstances, the Commissioner (Appeals) could not be blamed for having proceeded to decide the matter in terms of the direction issued under the order passed by the Hon ble High Court of Punjab and Haryana. 12. The entire basis for condonation of delay of about four months were disclosed in the memo of appeal which was filed by the appellants before the Commissioner (Appeals) and it reads thus:- ISIL was under the bona fide belief and impression that the first notice dated 13-3-2001 was followed by the second notice dated 14-12-2001, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellants that the copy of the order was received on 25-12-2002, it was factually received on 20-12-2002. All these facts also stand verified and confirmed by the Commissioner (Appeals) in his order dated 2-9-2003. 16. It is pertinent to note that the appellants had not filed any affidavit either of his Advocate or junior advocate or even clerk of the Advocate. Undisputedly, the alleged fact of misplacement of the copy of the order is not within the knowledge of the appellants. It is also not within the knowledge of the Advocate because it was the contention by the Advocate before the Commissioner (Appeals) that it was misplaced by his junior. The records also nowhere disclose as to whether any attempt was made to trace out the papers prior to 10-6-2003. Records also nowhere disclose that any attempt was made by the appellants to get another copy of the impugned order consequent to alleged misplacement of the copy of the order which was received by the appellants on 20-12-2002. 17. The records further disclose that the copy of the order was entrusted to the Advocate by the appellant on 20-2-2003 i.e. exactly after the expiry of period of limitation for filing the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the learned Advocate inasmuch as that there was misplacement of the copy of order in the office of the learned Advocate and therefore for the mistake on the part of the advocate, the appellants should not be penalized and appellants having a good case on merits, the delay needs to be condoned. 20. As already seen above as regards the alleged negligence on the part of the learned Advocate in misplacement of the copy of the order, apart from the mere allegation in that regard, no cogent material is placed on record to believe the said allegation. In the absence of either an affidavit of the concerned Advocate or his junior or his clerk and in the absence of personal knowledge of the alleged fact to the appellants, mere allegation in that regard by the appellants cannot be believed. 21. The decision of the Apex Court in Bansidhar Sewbhagovan Co. case was on the basis of the facts of that case which established that there was some negligence on the part of the Counsel who had appeared before the Tribunal as he had failed to appear on the relevant day and, therefore, there was dismissal of the matter and in that regard the order of refusal to restore the appeal was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on behalf of the appellants in the case in hand. All those decisions were given in the peculiar facts of each case. The decisions clearly disclosed that the negligence of the Advocate was clearly established either by way of documentary evidence or by the oral submission by the Advocate himself in the case. That is not the case in the matter in hand. 29. It was then sought to be contended that the appellants have a good case on merits and the decision having been based on the figures disclosed in the balance sheet, taking into consideration the decision of the Tribunal in Vidarbha Winding Wires Ltd. case, the authority ought to have condoned the delay. Attention was sought to be drawn to Paras 12 and 13 of the said decision. It is pertinent to note that the observation in Para 12 itself discloses that the decision was in totally different set of facts. It was observed by the Tribunal in para 12 that We find that as regards the allegation that as per the balance sheet, the respondents had consumed 85,612 Kgs. of raw materials in excess over what was shown in the excise records, the explanation of the respondents is that in the balance sheet, while showing the quantity of copp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in another matter between the appellants and the respondent and in that regard attention was sought to be drawn to ground No. E in the memo of appeal wherein it has been stated that Appellant would like to state that the issue is otherwise already decided by another authority in their favour, so this delay should have been condoned in order to render justice to the appellant . The ground is totally vague. The pleadings do not disclose whether the authority who is alleged to have decided the issue is the original authority or the lower appellate authority or the Tribunal. The pleadings do not disclose the identity of the case wherein the alleged issue is alleged to have been decided. In order to appreciate whether the issue involved in the matter has been decided in some other case by some other authority or not, it is necessary to ascertain as to whether the similar issue had arisen before the another authority and in what facts and circumstances it had arisen, and what has been the decision. In the absence of disclosure of those facts, mere submission that the issue stands covered by another decision cannot be a justification for condoning the delay. In Coronation Spinning I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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