Delay of 240 days in filing the appeal condoned as order in appeal not received even after repeated reminders

PJ/Case Law/2013-14/1680

Case:-Y.S. ENTERPRISES Versus COMMISSIONER OF C. EX., DELHI

Citation:- 2013 (292) ELT. 434 (Tri. - Del.)

Brief Facts:-This is case pertaining to condonation of delay application and the stay application. There was delay of 240 days in filing the Appeal before the Tribunal as the applicant did not receive the copy of order in appeal and the order in appeal was supplied only on 15.7.2009, that too after repeated reminders. Moreover, 50% of the duty demand and penalty was deposited at the first appellate stage and so it was requested to grant stay for the balance dues.

Appellant’s Contention:-The Applicant submitted that adjudication order was passed on 13-10-2008 but the same was not received by the applicant and applicant vide letter dated 7-3-2009 written to the Commissioner of Central Excise (Appeals) that the order-in-appeal is not received by the assessee nor by his advocate and applicant seeks the status of the appeal. The Superintendent (Appeals) in reply to this letter dated 26.03.2009 informed the applicant that the order in appeal has already been dispatched through speed post on 13.10.2008. In reply to this letter, applicant again on 13.04.2009 asked for the copy of order-in-appeal. Thereafter, the applicant sent reminder and Superintendent (Appeals) vide letter 29.04.2009 supplied the photo copy of the postal receipt under which the order was dispatched. The applicant vide letter dated 13.05.2009 again asked for the copy of the order and therefore reminder was sent on 22.06.2009. Ultimately the copy of the order was supplied vide letter dated 15.07.2009 and thereafter the appeal has been filed on 12.09.2009. He submits that on receipt of copy of the order, the applicant filed the appeal within normal period of limitation and hence there is no delay.

Respondent’s Contention:-The Respondent submitted that the order-in-appeal was dispatched on 13-10-2008 through speed post and that the same has not been received back. Hence, the presumption is that same has been received by the applicant and, therefore, there is a delay in filing the appeal which is not sufficiently explained.

Reasoning of Judgment:-After considering the We find that the show cause notice was issued on 16-1-2007 for personal hearing for 29-9-2008 and the applicants were represented by the advocate. Order-in-appeal was passed on 13-10-2008. Thereafter vide letter dated 7-3-2009 the applicant asked for the status of the appeal. It was informed that the appeal has already been decided and order has already been dispatched. Then the applicant repeatedly asked for copy of the order and same was supplied only by letter dated 15-7-2009. From the order-in-appeal we find that copy of the order was not marked to the Advocate who appeared at the time of personal hearing. In these circumstances, we find that applicant has explained the delay. In these circumstances, we find merit in the contentions of the applicant. The delay, if any, is condoned. Application for COD is allowed. He also added that the Applicant filed the application for waiver of duty and penalty. The applicant had already deposited 50% of the duty at the time of hearing before the Commissioner (Appeals). Keeping in view the facts and circumstances of the case, the amount already deposited is sufficient for hearing of appeal. The pre- deposit of the remaining amount of duty and penalty is waived and recovery thereof stayed during the pendency of the appeal. Stay Application is allowed.

Decision:-Applications allowed.

Comment:- The crux of this case is that even huge delay in filing appeal may be condoned if there is genuine reason for not filing the appeal on time.

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PJ/Case Law/2013-14/1680

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