Condonation of delay of 730 days is also allowed when there was bonafide belief that there will be common appeal by firm and partner.

PJ/Case Laws/2012-13/1236

Case:- M/S NEW ERA METALS VS COMMISSIONER OF CENTRAL EXCISE, VAPI

Citation: - 2012-TIOL-1232-CESTAT-AHM

Brief fact: - The application for condonation of delay is filed by the applicant for the condonation of delay of approximately 730 days.

Appellant Contention: The Appellant submit that they had not filed the appeal under the bonafide belief that the partner of the appellant had file an appeal against the very same impugned order and in that impugned order, the partner had challenged the liability for confiscation of the offending goods. It is his submission that the said bonafide belief continue till the appeal of the partner is disposed off. He further submitted that he is filling an affidavit of partner in support of the said bonafide belief.

The Appellant further submitted that the Apex Court in the recent judgement in the case of Improvement trust, Ludhiana Vs Ujagar Singh & Ors. – 2010-TIOL-46-SC-LMT held that
“after all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicality and that too at the threshold it is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities". So Appellant submitted that the delay may be condoned and appeal may be taken on record and disposed of.

Respondent Contention:- Learned Departmental Representative submit that the appellant in relied upon the decision of Tribunal in the case of M/s. Convergys India Services Pvt. Ltd. Vs. CC, Bangalore - 2010 (262) ELT 590 (Tri. Bang.) = 2010-TIOL-341-CESTAT-BANG held that decline to condone delay of more than 2 years. It is his submission that in the case in appeal, that the appellant/partner of the firm filed an appeal for but the appellant company has not filed any appeal against the confiscation upheld by the first appellate authority. It is his submission there is no justifiable reason given for condonation of delay.

Reasoning of Judgment: The Tribunal held that when the appeal of the partner of appellant/applicant was heard and disposed of vide Order No. A/508-510/WZB/AHD/2012 dated 09.04.2012 by Single Member Bench of this Tribunal which has held that personal penalty on the partner can be imposed only on the ground, if the goods are liable to confiscation. In that very same judgement, the Bench has upheld that in the final order dated 28.11.11, the quantity of goods which was confiscated was, held to be not liable for confiscation, in an another proceedings in the form of setting aside the demand of duty on the very same quantity of finished goods. The Tribunal also find that strong force in the contentions raised by the learned counsel, as to if the goods are not liable for confiscation, first appellate authority's order holding that the goods liable for confiscation will fall by though there was no specific appeal filed by the firm against such an order of holding that the goods liable for confiscation.

Tribunal find that affidavit which has been filed in support of the application for condonation of delay have given sufficient and acceptable justification in as much as that partner of the firm could have been under bonafide belief that in his appeal he has taken the ground that the goods are not liable for confiscation. Therefore the appellant/ made out a case of condonation of delay in filing the appeal. Accordingly, the application is allowed and registry is directed to take the appeal on record and list for disposal in due course.

Decision:- Application allowed

Comments:- The separate appeal for firm and partner is to be filed. But the assessee was under bonafide belief that the appeal filed by the firm will cover the appeal of partner. Hence, they have not filed the separate appeal. But knowing about the same, they have filed the same. Hence, the condonation of delay is allowed.

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PJ/Case Laws/2012-13/1236

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