Delay in filing Appeal - Condonation of

PJ/Case Laws/2011-12/1385

Case: HBL POWER SYSTEMS (I) LTD. v/s COMMISSIONER OF C. EX., HYDERABAD

Citation: 2011 (271) E.L.T. 590 (Tri.-Bang.)

Issue:- Condonation of delay of 61 days in filing appeal before the Tribunal - Assessee pursuing wrong remedy before Revisionary Authority – sufficient reason – delay condoned.

Brief Facts:- Against the order passed by the Commissioner (Appeal), the appellant chose to file a revision petition with the Government of India within the prescribed time-limit. Later on, the Revisionary authority, having found that the correct remedy against the Appellate Commissioner's order was an appeal before the Tribunal returned the papers to the appellant instructing them to file and appeal before this Tribunal if so advised. The present appeal was filed on 11-3- 2010. This appeal ought to have been filed on or before 8-1-2010. Hence there is a delay of 61 days.

Application is filed by the appellant for condonation of delay of 61 days involved in filing of the appeal.

After hearing ld. Counsel for the applicant/appellant and Id. JDR for the Revenue, sufficient cause for condonation of this delay has been found. The appeal was directed against the Appellate Commissioner’s order.

Appellant’s Contention:- Appellant contended that the preamble to the Appellate Commissioner’s order did not guide them properly inasmuch as it laid down not only remedy but also revisional remedy. Therefore, they had preferred revision before the Government.

In support of the plea for condonation of the delay of 61 days, they rely on the decision in the case of Cairn Energy India Pty. Ltd. v. Commissioner of Central Excise & Customs, Visak-II [2008 (221) E.L.T. 440 (Tri. - Bang.)], wherein this Bench condoned the delay of an Excise appeal after taking note of the fact that the appellant had lost some time pursuing wrong remedy before another authority.

Respondent’s Contention:- Revenue argued that the cases in which a revision application to the Government of India could be filed as also other cases in which an appeal could be filed with this Tribunal were distinctly mentioned in the preamble to the impugned order.

Nevertheless, the conduct of the appellant during the interregnum between the Appellate Commissioner's order and the present appeal has to be taken into account. Upon receipt of the impugned order, the appellant chose to file a revision petition with the Government of India within the prescribed time-limit. Apparently, this was done on the basis of the appellant's understanding of para 2 of the preamble to the Appellate Commissioner's order. Later on, the Revisionary authority, having found that the correct remedy against the Appellate Commissioner's order was an appeal before the Tribunal returned the papers to the appellant instructing them to file and appeal before this Tribunal if so advised. The present appeal was filed on 11-3- 2010. This appeal ought to have been filed on or before 8-1-2010. Hence there is a delay of 61 days.

Reasoning of Judgment:- The Tribunal held that the conduct of the appellant during the interregnum between the Appellate Commissioner's order and the present appeal has to be taken into account. It was noted that the revision application was filed on time. But as the correct remedy was appeal before the Tribunal, the Revisionary authority had returned the papers. And the delay in filing appeal is for this reason.

The Tribunal held that the case law cited by the appellant also support their case. Admittedly, the appellant was mistakenly pursuing the revisionary remedy before the Government of India after receiving the Appellate Commissioner's order. Upon the papers having been returned by the revisionary authority, they filed an appeal with this Tribunal without unreasonable delay. Therefore, there is sufficient cause for for condonation of delay.

Decision:- Application allowed.

Comment:- This is very good decision wherein the appellant has filed appeal before revisionary authority but it was to be filed before the tribunal. The tribunal has rightly condoned the delay. When the delay has sufficient cause then the same should be condoned.

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PJ/Case Laws/2011-12/1385

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