Dwarkadhish Sakhar Karkhana Ltd. vs Commr. of Central Excise

This is an Appeal filed against the order passed by the Tribunal-Revenue refusing to condone the delay of 76 days in filing of statutory appeal. The Appellants before us filed an Appeal before the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Mumbai. The Appeal challenges an order passed by the Adjudicating Authority dated 25-8-2011. The Appeal was filed beyond the stipulated period. It was barred by 76 days being filed on 6th March, 2012.

The explanation given in the application for condonation of delay is that, one Sanjay Anant Tope is the Office Superintendent in the establishment and in the employment of the Appellants looking after all the legal matters. The order passed by the Adjudicating Authority was received on 20th September, 2011. However, Mr. Sanjay Tope was unwell. He was not attending the office. Consequently, the matter could not be attended to immediately. Mr. Sanjay Tope had been advised rest by the Doctor for his back ailment. The requisite certificates were annexed. It has been then stated that after resumption of duties by Mr. Sanjay Tope, steps were taken to expeditiously filed the Appeal. In the meanwhile, the Appellants reported compliance of the order under challenge subject to and without prejudice to their legal rights and contentions. Thus, they acted bona fide. There is no negligence, carelessness on their part and the explanation therefore deserved to be accepted in the submission of Mr. Patil.

On the other hand, Ms. Shah, learned counsel appearing on behalf of the Respondent-Revenue submits that the impugned order is discretionary. The Tribunal found that the explanation given for the delay cannot be accepted. The discretion, therefore, has been exercised in accordance with law. The Appeal deserve to be dismissed. We have perused the order passed by the Tribunal and impugned in this case. We have also perused the application for condonation of delay. The Tribunal has termed the explanation offered by the Appellant as casual. In that regard, we have perused paragraph Nos. 5 and 6 of the order under challenge. The Tribunal, in our opinion, has taken a hyper technical view of the matter. It does not hold that the explanation given is false or that the conduct of the Appellants is such that they were utterly negligent, careless and acted mala fide, then, there was no need to take such a view. In fact, liberal principles ought to have been applied and delay deserved to be condoned with an appropriate direction of payment of costs so as to compensate the Respondent and balance the rights and equities. Once the explanation given is found to be genuine and not false, then, holding that the delay does not deserve to be condoned because the Appeal was not filed immediately after resumption of duty by Mr. Sanjay Tope or after deposit of the demanded amount, was not in accordance with law. We are of the opinion that the view taken by the Tribunal cannot be sustained. Paragraph No. 6 of the order under challenge clearly omits from consideration the explanation given inasmuch as the said Mr. Tope was advised complete bed rest, medical papers were filed so also the affidavit of Mr. Sanjay Tope. In these circumstances, refusal to condone the delay vitiates the impugned order in law. The delay deserves to be condoned by applying the liberal principles and which are too well settled. The Appellants deserves to be given a chance to agitate their case on merits as they have acted bona fide. There are the principles which should have been invoked and applied and having not done that, we are unable to sustain the order under challenge. It is, accordingly, quashed and set aside. The delay condonation application is allowed. However, the Appellants shall pay costs quantified at Rs. 15,000/-. The costs shall be paid within a period of four weeks from today. On the costs being paid to the Respondent and proof produced, the Tribunal shall revive the Appeal as also the stay application. It would be open for the Appellants to press the application for stay/waiver of pre-deposit on its own merits and in accordance with law. Any default in compliance with this direction shall result in the order of the Tribunal being maintained and this Appeal dismissed.