Andew Yule and Company Ltd. vs Commr. of C. Ex.

The Court: This appeal has been filed by the appellant against order, dated 7th March, 2014 passed by the learned Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata in Miscellaneous Application No. 70649/2013, Stay Petition No. 70648/2013 and Excise Appeal No. 70652/2013 on the following question :

"Whether the Tribunal was justified in law in not condoning the delay of 338 days in preferring the appeal and its purported findings dismissing the application for condonation of delay as well as the stay application and appeal are arbitrary, unreasonable and perverse?"

It appears from the records the appellant in seeking to prefer appeal, pertaining to its explanation for the delay, had filed a Miscellaneous Application, a supplementary affidavit thereto and a list of dates handed up at the time of adjudication by the Tribunal. The Tribunal while dismissing the Miscellaneous Application and Appeal had relied on the judgment passed by the Hon''ble Supreme Court in Office of the Office of The Chief Post Master General and Others Vs. Living Media India Ltd. and Another, and passed the following order:--

"After hearing both the sides I find that according to own submission of the applicant they were informed on September 23, 2012 from the Superintendent that the appeal has been dismissed by the Commissioner of Central Excise (Appeal-I), but they took a considerable time in retrieving the relevant documents from their godown. I am of the view that in the matter of litigation where certain proceedings are going on before different authorities, it was required to keep the relevant records in a manner to locate them without loss of any time. Moreover, once the appellant came to know on 23rd September, 2012 from the Superintendent that their appeal has been dismissed, they were at liberty to approach the Department and ask for a copy of the records available if any, with the Department so as to enable them to file the appeal as early as possible but I do not find any such attempt made by the appellant. They had not addressed even any letter to the Department to hand over a copy of the order-in-Appeal. I do not find that the reasons given for the delay in this case are the sufficient cause. Though delay is stated to be due to unavoidable circumstances and genuine difficulties, the appellant did not show a diligence and commitment in prosecuting the matter in time. In these circumstances and keeping in view the Apex Court''s judgment in case of Living Media India Ltd. (supra). I find that there is no sufficient cause explained by the applicant/appellant warranting condonation of delay."

Mr. J.P. Khaitan, learned Senior Advocate appearing on behalf of the appellant, relied on the judgment in Commissioner of Income Tax Vs. Agarwal Hardware Works Pvt. Ltd., to submit a substantial question of law arose from the order of the Tribunal by which the delay was not condoned. On the decision in the case of the Office of the Chief Post Master General (supra), he submitted in paragraph 11 thereof it was found no explanation was offered by the appellant in that case whereas the appellant in this cause had offered some explanation.

Mr. Saraf, learned Advocate appearing on behalf of the respondent submitted the purported causes shown were correctly held to be unacceptable. The order of the Tribunal did not warrant any interference particularly when there was no sufficient cause found.

From the reasons given by the Tribunal for not finding cause shown by the appellant to be sufficient, it appears to us the Tribunal in relying on and following the said decision of the Hon''ble Supreme Court did not accept the explanation given, as it found the appellant did not exercise their liberty to approach the Department and ask for copies of the records available, if any, with the Department so as to enable them to file the appeal as early as possible. On that reason the Tribunal found the appellant did not exercise or show diligence and commitment in prosecuting the matter in time.

It appears to us the Tribunal while not accepting the causes shown did not disbelieve per se, such causes but expected from the appellant conduct that would have shown better diligence on its part. Such findings of the Tribunal, in our view, could not be said to have been made in following the decision of the Hon''ble Supreme Court in the case of the Office of the Chief Post Master General (supra) where the appellant Government company had not given any explanation at all. Since the Tribunal in its order did not deal with the explanation given in the appeal before it in the context of whether they by themselves were sufficient cause or not, we find the order was perverse and thus substantial question of law arises.

By consent of the parties, we admit the appeal on the formulated question and treat the appeal as on the day''s list. We, therefore, answer the question in the affirmative in favour of the appellant and against the Revenue. The Tribunal will take up and dispose of the appeal and stay application on merits expeditiously.

The application and the appeal both are disposed of. Urgent photostat certified copy of this order be supplied to the parties, if applied for, upon compliance of all requisite formalities.