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2025 (1) TMI 1031

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..... ing the appeal is required to be explained. It is found that not even a weak attempt at such an explanation accounting for the enormous delay of nearly two years (after discounting suo motu limitation free period), accruing in the present matter. Though, time and again, Courts have emphasized that sufficient cause ought to be viewed with flexibility, but the same in the first place needs to be properly accounted for and satisfied with. Just because the Court has power to condone the delay, it cannot be so done mechanically and appeal accepted, but for appropriate and justifiable reasons. The apex Court in the case of AJAY DABRA [ 2023 (1) TMI 1279 - SUPREME COURT] , refused to condone the delay recently where it was alleged that the appellant was short of funds to pay court fee. It held that the appeal could have been filed and defects attended to (could be removed) thereafter. This is to point out that financial conditions are not a potent reason to admit a COD application. The Hon ble Andhra Pradesh High Court in the case of Shanti Alloys Pvt. Ltd. v. Commissioner of C.Ex., Hyderabad [ 1998 (12) TMI 92 - HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYD.] had held that a delay in f .....

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..... justice, an adjournment was allowed then, with the direction that a clear Affidavit explaining the reasons for the delay be filed in the matter. (vi) In pursuance thereof, the appellant filed an Affidavit sworn by one Shri Akbar Khan and another Shri Sammad Khan, both sons of Shri Abdul Jabbar Khan and partners in the appellant-firm M/s. Abdul Jabbar & Sons. In the sworn Affidavit by the above named two persons, while submitting that their grievance could not be redressed by the two authorities below and thus they filed the present appeal, the appellant pleads therein that their families (joint family) are dependent on the working profit of their firm and that pursuant to search of their premises undertaken by the Directorate General of Central Excise Intelligence (DGCEI) on 23rd June, 2015, the company went into financial doldrums as they failed to collect their dues from the market. It is alleged in the Affidavit that the entire family is since facing a financial catastrophe. (vii) The Affidavit further goes on to state as under: - "After the order in appeal which the undersigned appellants had received on time, the family of the undersigned appellants faced another untowar .....

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..... pex Court. 4. This delay has been largely explained in the Affidavit on account of certain medical contingencies and financial hardship. However, it is seen from the Affidavit filed that there is neither indicated any timeline of the said surgeries taking place, nor is any documentary evidence enclosed in support of such contentions as made out, to account for the gross delay in the matter. 5. While this court would render all its sympathies for the medical and other difficulties, the appellant's family might have encountered, but the ends of justice cannot be swayed by emotions. It is often held by courts that in such matters, an appropriate consideration is imperative and important as the opposite party cannot be subjected to the consequence of a delayed appeal. From the facts of the case, it appears that the appellant was running an unregistered unit, manufacturing excisable finished goods, said to be cleared clandestinely and it was in that context that the machinery used for such production of goods was also seized by the Departmental Officers. The appellant contends that the seized goods (finished products and raw material etc.) that were handed over to them on supratnama, .....

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..... ver, the narrations in the COD application or the Affidavit filed are mere bland statements and bereft of any evidence in support and accountal of the timelines and simply make certain emotional claims. No evidence on account of medical surgeries as referred to in the Affidavit has been submitted and placed on record, by the appellant. 7.1. Also, discounting the period of limitation as admissible to appellant, in view of the Hon'ble Apex Court's directions as mentioned supra, there has been an actual time lag of nearly 680 days since receipt of the impugned order and when the appellant contends that their tale of financial and medical hardship and distress fell through. For the sake of ready reference, a tabular representation of the factual timelines is reproduced below: - Date of receipt of the order plus 90 days 90 days [05.05.2018 to 02.08.2018] March 15, 2020 to March 3, 2021 [limitation-free] 353 days [15.03.2020 to 03.03.2021] Time Taken from the date of receipt of the order 1034 days [05.05.2018 to 03.03.2021] Total Time taken in filing of appeal from the date of receipt of the order up to Mar 14, 2020 [excl. the period from 15.03.2020 to 28.02.2022] 678 days [05. .....

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..... uthorities. Herein case of Krishnappa Silk Fabrics & Others v. CC, Chennai 2004 (92) ECC 664 (T) could be referred to wherein the Tribunal refused to condone the delay of more that 175 days, despite being supported by a Medical Certificate. 8.5. In the case of Sabhyata Platics Ltd. v. Commissioner of C.Ex., Jaipur 2002 (48) RLT 158 (Tri.), the Tribunal refused to condone the delay of a mere 254 days despite the admitted position of the service of the order.It may be pointed out that a delay of 700 plus day was not condoned by this Tribunal in the case of Commissioner of C.Ex., Chandigarh-I v. Viswanath Iron & Steel Rolling Mills 2002 (150) E.L.T. 307 (Tri. - Del.) and it has been always held by courts that a COD petition is not sustainable when delay has not been explained or justified amicably [Hyundai Motors Ltd. v. Commissioner of Customs, Chennai 2002 (150) E.L.T. 371 (Tri. - Chennai), Commissioner of C.Ex., Belgaum v. Godavari Sugar Mills Ltd. 2001 (137) E.L.T. 755 (Tri. - Chennai), Commissioner of C.Ex., Chennai v. Amrutanjan Ltd. 1999 (105) E.L.T. 78 (Tri.), Commissioner of Cus., Chennai v. Indian Organic Chemicals 2001 (137) E.L.T. 650 (Tri. - Chennai). A mere delay of sev .....

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..... ce as it is an admitted position by the appellant that their premises were unregistered and that they were undertaking manufacturing from the premises (unregistered in this case) without declaring the machineries as required in law, to the authorities concerned. 8.9. The Hon'ble Apex Court has at the same time also cautioned, that condonation of delay ought not to be exercised so leniently so as to bring within its ambit cases of patent negligence and laches [Union of India v. Tata Yodogawa Ltd.2]. In the present instance also, there is sheer negligence and considerable laches on the part of the appellant giving it a mask of financial and medical crisis. 8.10 The apex Court in the case of Pamidighantam Sri Narasimha 2023 Live Law SC 69, refused to condone the delay recently where it was alleged that the appellant was short of funds to pay court fee. It held that the appeal could have been filed and defects attended to (could be removed) thereafter. This is to point out that financial conditions are not a potent reason to admit a COD application. 8.11. The Hon'ble Andhra Pradesh High Court in the case of Shanti Alloys Pvt. Ltd. v. Commissioner of C.Ex., Hyderabad 1999 (109) E.L.T .....

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