Whether COD in filing appeal acceptable when delay occurred as the concerned person left the job ?

PJ/Case Laws/2012-13/1506

Case:-ISHWAR MENTAL INDUSTRIES Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR

Citation:-2013 (29) S.T.R.539 (Tri.-Del.)

Brief Fact: The delay in filing the present appeal is of 14 days which stands attributable to the fact that the appellant being away from his place of office. Keeping in view the fact that the delay is only about 14 days, the delay was condoned. Further, it was noted that the Commissioner (Appeals) has rejected the appeal on the point of time-bar inasmuch as the appeal before him was filed with the delay of 69 days. The appellant filed COD application before Commissioner (Appeals) on the ground that their excise person left the job on 24-4-2007 and as such the appeal could not be prepared well within the time and could not be filed before the last date of expiry, i.e., 21-4-2011. The Commissioner (Appeals) has not accepted the above reason for late filing of appeal and rejected the appeal.

Appellant Contentions: The Appellant’s Contention is that one of their employee Shri Ram Chander Choudhary who was looking after Excise work, left the job on 24-3-2011 and joined another factory on 4-4-2011. All relevant papers were lying with him and as such the last date of expiry, i.e., 21-4-2011. The Commissioner (Appeals) has not accepted the above reason for late filing of appeal and rejected the appeal.

Reasoning of Judgment:-At this stage, Tribunal noted the decision of Hon’ble Supreme Court in the case of Perumon Bhagvathy Devaswom wherein after discussing no. of judgments as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Hon’ble Court has as under:-

“13. (i) The words “sufficient cause for not making the application within the period of limitation “ should be understood and applied in reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and type of case. The words ‘sufficient cause’ in section 5 of the Limitation Act should received a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.

(ii) In consideration the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representative of the decreased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decided the matter on merits, rather than terminate the appeal on the ground of abatement.

(iii) The decisive factor on condonation of delay, is not the length of delay but sufficient of a satisfactory explanation.”

Tribunal was of view that by adopting the above guidelines laid down by Hon’ble Supreme Court, we deem it fit that the appellant has to be shown some leniency in the present case for the purpose of condoning the delay before Commissioner (Appeals). The circumstances explained by the appellant cannot be held leading to any conscious delay or dilatory tactics on their behalf. As such we are of the view that Commissioner (Appeals) should have condoned the delay and should have decided the appeal on merits. In the view of the above, we set aside the order of Commissioner (Appeals) and direct him to decide the appeal on merits after condoning the delay in filing the appeal.

Decision:-COD as also stay petition and appeal gets disposed of in above manner.

Comment:- The crux of this case is that a lenient approach should be taken in condonation of delay applications when the delay is not significant and the reason for late filing are not backed by any conscious, or deliberate ulterior motive and can be held as reasonable.

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PJ/Case Laws/2012-13/1506

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