Delay in filing appeal should be condoned on submission of reasonable cause.

PJ/Case Law/2013-14/1986

Case:- JANTA GLASS LTD. Vs COMMISSIONER OF CENTRAL EXCISE, VADODARA-I

Citation:- 2013 (294) E.L.T. 607 (Tri. - Ahmd.)

Brief facts:- The stay petition was filed for the waiver of pre-deposit of duty of Rs. 11,03,893/-, interest thereof and equal amount of penalty imposed. The above said amounts had been confirmed by the adjudicating authority and upheld by the first appellate authority as an amount of duty from the appellant for reversal of the Cenvat credit availed on the inputs which were lost due to flood. After hearing both sides for sometime on the stay petition, the bench found that the appeal itself could be disposed off as the first appellate authority had rejected the appeal only on the ground of limitation. Accordingly, after allowing the application for the waiver of pre-deposit of the amounts involved, the Bench took up the appeal itself for disposal.

Appellant’s contentions:- Learned counsel drew the attention to the findings recorded by the first appellate authority in Para 5.1. He submitted that the first appellate authority had accepted that there was delay of only 30 days and was within condonation period but was not satisfied with the cause and reasons given for condonation of delay. He submitted that appellant, in fact had deposited the entire amount of Cenvat credit and interest thereof considering that they had purchased peace with the department. It was also his submission that appellant was surprised to receive the show cause notice for confirmation of demand and appropriation of the amount already paid and also the appellant was saddled with equivalent penalty under Section 11AC and Rule 15 of Cenvat Credit Rules, 2004. It was his submission that matter should have been disposed by the first appellate authority and should have condoned the delay.

Respondent’s contentions:- Learned departmental representative reiterated the findings of the first appellate authority and submitted that the appellant had not given justifiable reasons for condoning the delay.

Reasoning of judgment:- On careful consideration of the submissions made by both sides and perusal of record, the Bench found that the first appellate authority, in his impugned order had admitted and accepted that there was delay of only 30 days which could be condoned by him, if there was sufficient cause shown by the appellant. They found that the appellant had given cause as that the person who undertook the Central Excise matters fell seriously ill during 25-6-2011 to 29-6-2011 and due to which the order-in-original could not be pointed out and nor they could take action to file the appeal in time. They further found that the appellant had given the justifiable reasons and made out a case for the condoning the delay. In their view, the first appellate authority should have condoned the delay and should have concluded the issue on merits. Suffice to say, justice should not be denied to the assessee. The Bench found this was a fit case for condoning the delay and remand the matter back to the first appellate authority to reconsider the issue afresh on merits of the case and they did so.
They made it clear that they had not expressed any opinion on the merits of the case, keeping all the issues open for the first appellate authority to consider and come to conclusion. Needless to state that first appellate authority would pass an order after following the principles of natural justice.

Decision:- Appeal is allowed by way of remand.

Comment:- The analogy drawn from the case is that delay in filling the appeal and that too within the prescribed condonable limit may be condoned if justifiable reasons for the delay have been given by the assessee to meet the ends of justice.

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PJ/Case Law/2013-14/1986

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