Whether Condonation of Delay (COD) acceptable on account of seeking legal opinion?

PJ/Case Laws/2012-13/1302

CASE:FIE SPHEROTECH V/s COMMISSIONER OF CENTRAL EXCISE, PUNE-II

CITATION: 2012-TIOL-1523-CESTAT-MUM

BRIEF FACTS:The brief facts of the case are that the applicant filed the application for waiver of pre-deposit of interest and penalties. Applicant had already deposited the amount of Rs. 1, 82,611 & 1, 83,192/- even prior to the adjudication order. The amount already deposited by applicant is appropriated against the confirmed demand. Hence, pre-deposit of the remaining dues is waived and recovery stayed.

Appellant filed an appeal before the Commissioner (Appeals) against the adjudicating order alongwith an application for condonation of delay of 15 days in filing the appeal. The appeal is filed under the provision of Section 85 of Finance Act, 1994 which provides that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner of Central Excise (Appeals) within three months from the receipt of the decision and the Commissioner (Appeals) can condone the delay of three months on showing sufficient cause for not filing the appeal within the normal period. The contention of the appellant before the Commissioner (Appeals) regarding the delay is that the order dated 29.7.2011 was received by them on 11.8.2011 and appellant sought the legal opinion and due to this reason there was a delay in filing the appeal. The appeal was filed on 25.11.2011

APPELLANT’S CONTENTION:The contention of the appellant before the Commissioner (Appeals) regarding the delay is that the order dated 29.7.2011 was received by them on 11.8.2011 and appellant sought the legal opinion and due to this reason there was a delay in filing the appeal. The appeal was filed on 25.11.2011

REASONING OF JUDGEMENT:For judgment purpose, it is found that the Hon’ble Supreme Court in the case of Collector, Land Acquisition Anantnag & Another V/s MST Katiji & Others reported in 1987 (28) ELT 185(SC) = (2002-TIOL-444-SC-LMT), has held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated.

In view of the above decision, the impugned order dismissing the appeal as time barred is set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after affording an opportunity to the appellant.

DECISION:The appeal is disposed by way of remand.

COMMENT:The analogy drawn from this case is that the right to appeal cannot be snatched from the appellant merely on account of delay in filing of the appeal where the appellant has explained the reason for delay. The appeal should not be rejected to be admitted for meager reasons because then a meritorious matter may be thrown at the very stage of inception and may lead to denial of justice.

Comments

PJ/Case Laws/2012-13/1302

Post a Comment

Query