Whether condonation of delay of 1035 days in filing appeal is allowed?

PJ/CASE LAW/2016-17/3093

Case: PRAG BOSIMI SYNTHETICS LTD. Vs COMMISSIONER OF C. EX., GUWAHATI

Citation: 2015 (323) E.L.T. 479 (Gau.)

Brief Facts:The appellant is a Joint Sector Company promoted by the Government of Assam for manufacture of Polyster Filament Yarn which is necessary for development of textile and handloom related industries. Under Notification dated 1-3-1988 concession of duty is applicable to such industries subject to production of a consumption certificate. On account of certain circumstances mentioned in the pleadings, the industry was closed down but after securing certain concessions in the matter of debt repayment, the industry has been able to start again. The Excise Department conducted search and found that the consumption certificates furnished by the appellant were not genuine. Accordingly, the adjudicating authority after issuing show cause notice passed order dated 30-3-2007 creating demand for Central Excise Duty of Rs. 40,81,236.00 under Section 11A of the Act apart from interest and penalty.
The appellant thereafter filed an appeal before the Tribunal after delay of 1035 days along with application for condonation of delay on the ground that since the factory was closed down in the year 2006 and the Senior General Manager (Commercial), Sri Paulson Albert who was looking after the Central Excise matter had left the Company, the appeal could not be preferred within the period of limitation.
The prayer was opposed by submitting that no sufficient cause was made out for condonation of delay. The appeal was filed by Sri Bharat Kumar Katakey and not by Sri Paulson Albert.
Reasoning of Judgment:- It is patent that there is a long un-explained delay in filing the appeal and strictly speaking, the explanation furnished can hardly be held to be satisfactory. The law of limitation for the State and citizen is same. However, having regard to the fact that the dispute is between the two wings of the Government, in the peculiar circumstances, particularly, the admitted fact that the factory remained closed and suffered huge financial loss, it will be in the interest of justice that the matter is heard on merits by the Tribunal before the liability of the appellant is finalized. The observations made in the judgment of the Hon’ble Supreme Court in Collector of Land Acquisition, Anantnag & Another v. Mst. Katiji and Others, (1987) 2 SCC 107 = 1987 (28)E.L.T. 185 (S.C.) that expression “sufficient cause” under Section 5 of the Limitation Act was adequately elastic to apply law subserving ends of justice, having regard to the fact that the State represents collective cause of the community.

Decision: The order is set aside and Tribunal is directed to adjudicate the matter on merit.

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PJ/CASE LAW/2016-17/3093

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