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TMI Blog2008 (1) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by limitation. 2. The brief facts of the case are that the appellant had purchased 10000 polythene covers from M/s. Shivalik Agro Poly Products Limited (respondent TMo.4 herein) Out of which, 3500 polythene coverstie covers were supplied by the aforesaid firm up to 28-2-1986 from Kalka Depot and the remaining polythene covers were supplied subsequently till May, 1986 from Parwanoo Depot. When the Department of Central Excise issued a show cause notice raising a demanded of Rs. 30,34,806.50 towards the Central Excise Duty for the supply of aforesaid 10000 polythene covers, M/s. Shivalik Agro Poly Products Limited demanded the aforesaid amount from the appellant which gave rise to a dispute between the appellant and the said company. The matter was referred for adjudication to the sole Arbitrator, who vide its award dated 15-3-1989 has held that M/s. Shivalik Agro Poly Products Limited was entitled to the said amount to wards the Excise Duty. In terms of the said award, the appellant paid Rs.30,34,806.50 to the aforesaid company which was paid by it to the Central Excise Department for supply of the aforesaid 10000 polythene covers. 3. M/s. Shivalik Agro Poly Products Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provision of Section 35B of the Central Act, 1944, the Tribunal has power to condone the delay within the period of limitation. In the present case, there is delay of 778 days. The reasons as re-produced above are not sufficient in not filing the appeal within the period of limitation. The contention in the application is only to the extent that the assessee has right to file the appeal even before the period of limitation. In the circumstances, we do not find any merit in the application and the same is dismissed. Consequently, the appeal is also dismissed." 7. The appellant has challenged the order dated 21-3-2006 passed by the Tribunal in this appeal while raising the following substantial questions of law (i) Whether the Tribunal was justified in dismissing the appeal filed by the appellant on the ground that as per the provision of Section 35(B) of the Central Excise Act, the Tribunal has power to condone the delay within the period of limitation? (ii) Whether the Tribunal has erred in law while dismissing the application for condonation of delay on the ground that the appellant had failed to show sufficient cause warranting condonation of delay of 778 days in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds that it is not the case where it can be said that the appellant was negligent or had acted in mala fide manner by not filing the appeal within the prescribed period. Learned counsel contends that the Tribunal has passed totally a non-speaking order. 10. On the other hand, learned counsel for the respondents submitted that the order passed by the Tribunal does not require any interference in this appeal as no substantial question of law is involved. He submitted that the Tribunal has rightly dismissed the application for condonation of delay as the appellant had failed to explain the sufficient reasons for not filing the appeal within of the prescribed period of limitation. Therefore, the application for condonation of delay in filing the appeal and also the appeal were rightly dismissed and the said order does not require any interference. 11. After hearing the arguments of the learned counsel for the parties, we are of the opinion that the Tribunal has erred in law while observing that "as per the provision of Section 35B of the Central Excise Act, 1944, the Tribunal has power to condone the delay within the period of limitation." Sub-section (3) and (5) of Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al by engaging one senior counsel and one junior counsel. The matter was immediately taken up with the Advocate on Record on 26-10-2004. However, the matter remained pending with the Advocate on Record till 19-5-2005. Thereafter, on 30-11-2005, the appellant approached the Legal Cell, Haryana Bhawan, New Delhi for filing the appeal. Ultimately the appeal bearing No. E/387/06 was filed. It has also been stated that in the application some delay had taken place due to inaction of some of the officials of the State Government against whom the disciplinary proceedings have been initiated. 14. In our opinion, the Tribunal has not properly considered the application for condonation of delay in light of the law laid down by the Supreme Court in various cases in this regard and has dismissed the said application while passing a non-speaking order only by one line that there are not sufficient reasons in not filing the appeal within the period of limitation. In State of UP. v. Harish Chandra , 1996 (85) E.L.T. 209 (S.C.) = 1996 (9) SCC 309, while condoning the delay of 480 days in filing the SLP by the State, it has been held by the Supreme Court that it is undoubtedly true t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the delay and the Tribunal was not justified in dismissing both the application for condonation of delay and the appeal filed by the appellant at the threshold on the ground that as per the provision of Section 35(B) of the Act, the Tribunal has power to condone the delay within the period of limitation. It cannot be said that the appellant was grossly negligent or there was a deliberate inaction or lack of bona fide in pursuing its remedy. By the impugned order, a great injustice has been resulted to the appellant who is claiming the refund from respondent No. 4 for an amount which was paid in excess to the Central Excise Department, particularly when the order of the Commissioner, Central Excise, Chandigarh was confirmed by the Tribunal and became final. In our opinion, the Tribunal should have condoned the delay. Thus, on the facts and. circumstances of the case, we are of the opinion that it is a fit case for condoning the delay. Hence, the delay of 778 days in filing the appeal is condoned. Consequently, the appeal is allowed and the impugned order dated 21-3-2006 passed by the Tribunal is set aside and the Tribunal is directed to admit the appeal and decide the same on m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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