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TMI Blog2019 (5) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... is long period from 23 January, 2018 up to January 2019, when the appellant initiated steps for filing the appeal has not been explained at all, much less sufficiently explained. We are, therefore, not convinced that there was sufficient cause for not presenting the appeal within the stipulated period - application for COD dismissed. - Excise Condonation of Delay Application No. E/50266/2019 in Excise Appeal No. 50578 of 2019 – DB - Final Order No. 50613/2019 - Dated:- 15-4-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. BIJAY KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Shri J.M. Sharma, Consultant And Ms. Pooja Aggarwal, CA Present for the Respondent: Shri V.B. Jain, DR ORDER Justice Dilip Gupta: This appeal was filed under Section 35B of the Central Excise Act, 1944 (hereinafter referred to as the Act) on 11 March, 2019 to assail the order dated 31 March, 2017 passed by the Principal Commissioner of Central Excise, Delhi. It is stated in the form attached to the appeal that the copy of the impugned order was communicated to the appellant on 12 May, 2017. Section 35(B) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany and the Director (the present appellant) filed Writ Petition (Civil) No. 1210 of 2017 before the Supreme Court. They also filed a Special Leave Petition bearing Diary No. 37973 of 2017, before the Supreme Court. The writ petition was dismissed as withdrawn and the Special Leave Petition were also dismissed by the Supreme Court by order dated 23 January, 2018, but liberty was granted to the petitioners in the Special Leave Petition to file a statutory appeal before Customs, Excise and Service Tax Appellate Tribunal within 30 days. It was also provided in the order that if the appeal is so filed, it will be considered on merits, subject to the requirement of pre-deposit. The order passed by the Supreme Court dismissing the Writ Petition and the Special Leave Petition on 23 January, 2018 is reproduced below : Writ Petition (Civil) No. 1210/2017 The writ petition is dismissed as withdrawn. SLP (C) Diary No. 37973/2017 The special leave petition is dismissed with liberty to the petitioners to file the statutory appeal before Customs, Excise and Service Tax Appellate Tribunal (CESTAT) within thirty (30) days. If it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Writ Petition in the Delhi High Court and the Writ Petition and Special Leave Petition in the Supreme Court and, therefore, cannot claim ignorance of legal procedure. It has been pointed out that in terms of order dated 23 January, 2018 passed by the Supreme Court in the Special Leave Petition filed by the Company and the Appellant, the appeal before the Tribunal had to be filed within 30 days of the decision i.e. within 30 days from 23 January 2018 and only if it was so filed, it was required to be considered on merit, subject to the requirement of pre-deposit. It is, therefore, the submission that as the Appeal was filed beyond 30 days from 23 January, 2018, the appellant cannot be permitted to contend that there was sufficient cause for not filing the appeal within the stipulated period. 7. We have considered the submissions advanced by learned Authorised Representative of the Appellant and the learned Authorised Representative of the Department. 8. The appeal was filed against the order dated 31 March, 2017 passed by the Principal Commissioner only on 11 March, 2019, though the period prescribed for filing the appeal under Section 35C(3) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the High Court and to the Writ Petition and Special Leave Petition filed before the Supreme Court. It cannot, therefore, be urged that the appellant was not pursuing the matter earlier or was ignorant. In any view of the matter, a Director of the Company cannot claim that he was ignorant. In fact as noted above, the Show Cause Notice had been issued to the appellant also and an order imposing penalty was passed against the appellant. It is for this reason that the appellant with the Company filed a Writ Petition in the Delhi High Court which was dismissed on 4 August, 2017. The appellant was also a party to the Writ Petition filed by the Company as also the Special Leave Petition before the Supreme Court. Though the Writ Petition before the Supreme Court was dismissed as withdrawn, the Special Leave Petition was also dismissed but with liberty to the petitioners to file a statutory appeal before the Tribunal within 30 days. The Supreme Court also observed that if it is so filed‟, it will be considered on merits subject to the requirement of pre-deposit. The Supreme Court, therefore, made it abundantly clear that it is only if the appeal was so filed i.e. within 30 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberal approach should be adopted. The Supreme Court further observed that on account of an impersonal machinery and the inherent bureaucratic methodology a liberal approach should be adopted when the State seeks condonation of delay, as no one in charge of the matter is directly hit or hurt by the judgement sought to be subjected to appeal. The Supreme Court also observed that delay on part of the State is less difficult to understand though more difficult to approve. 13. In the present case, as stated above the appellant who is the Director of the Company was aware of the order passed by the adjudicating authority as it was received by him on 12 May, 2017. The Director was also aware that an appeal could be filed before the Tribunal, as the Director was a party in Writ Petition in the Delhi High Court where it was sought to be contended that the Writ Petition should be entertained since the requirement of pre-deposit before the Tribunal was onerous. Even after the decision of the Supreme Court on 23 January, 2018 that required the Director to file an appeal before the Tribunal within 30 days from the decision of the Supreme Court, the Director filed the appeal only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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