2016 (9) TMI 1022

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..... nt the discretion should be exercised would vary from facts to facts. Financial inability cannot be a ground which need not be considered at the time of condonation of delay. On the contrary, financial inability can be one of the valid grounds for accepting the contention that the appellant was prevented by sufficient reasons in not preferring the appeal. We do not want to express any view on the merits of the appeal but it suffices to observe that it was the case to be considered in the appeal. It may be that in a given case, Court may decline to exercise discretion for condoning the delay, if, during the period of delay, the rights of the parties are substantially altered and/or irreversible situation is created but we do not find any of .....

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..... al, for the reasons recorded in the order, has dismissed the appeal by not condoning the delay. 4. We have heard Mr.R.Dakshina Murthy, learned counsel appearing for the appellant and Mr.K.V.Aravind, learned counsel for the respondent. 5. As such, it is undisputed position that, there was delay of 117 days in preferring the appeal. The explanation given by the appellant was that, because of financial constraint since the company was unable to deposit the 10% requisite amount, there is delay in preferring the appeal. On merits, it has been contended that there is arguable case to be considered in the appeal. Learned counsel submitted that the appellant is agreeable to pay costs if this Court is inclined to consider the matter on merits. .....

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..... stantially altered and/or irreversible situation is created but we do not fin d any of the requirements are satisfied in the present case. 7. In view of the above, we find, considering the facts and circumstances, the Tribunal ought to have exercised the discretion for condonation of delay. Further, declining the exercise of discretion for condonation of delay may result into grave injustice to the appellant and appellant would be deprived of the case to be considered on merits, more particularly, when no prejudice is going to be cause to the respondent-Department, since on the demand, the interest if ultimately is maintained, it is to follow. Under these circumstances, we find that the appeal deserves to be allowed. Delay deserves to be .....

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