K.H. Shameer vs Commissioner of Central Excise

H.L. Dattu, C.J.—The learned Single Judge, before whom the writ petition came up for consideration and decision, has thought it fit to refer the matter to the Division Bench for appropriate orders. That is why, the writ petition is before us, for admission.

In the writ petition filed, the petitioner had called in question the orders passed by the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench at Bangalore. An application for condonation of delay was filed by the petitioner in Appeal No. E/715/07 in E/St/456/07, E/COD/332/1. By the impugned order, the Tribunal has declined to condone the delay in filing the appeal and accordingly, has rejected the application. Consequently, the appeal also. The Commissioner of Central Excise and Customs, Cochin, had passed the order in original No. 20/2005 dated 30-4-2005. The said order was communicated to the petitioner. The petitioner did not file appeal within the time prescribed under the Act.

Nearly after two years from the date of passing of the order, the peti-tioner had called in question the orders passed by the Commissioner of Central Excise and Customs dated 13-4-2005 before the Tribunal with an application to condone the delay in filing the appeal. The petitioner had filed an affidavit along with the application. He had also enclosed a medical certificate issued by a doctor.

The Tribunal has considered the application filed by he petitioner for condonation of delay. The Tribunal is of the view that the cause shown by the applicant for condonation of delay is unsatisfactory. Therefore, it has rejected the application.

In the application, it was stated by the applicant that he was suffering from Rheumatoid Arthritis and therefore, he could not move around to file the appeal in time. Secondly, he has stated that he had some financial difficulties and therefore, had stopped his business activities and in order to improve his financial status, he had to go to Dubai. Further in the application it is stated that though he had requested for supply of certain documents, the same were not supplied by the Commissioner and that, prevented him from filing the appeal within the time envisaged under the Act.

The petitioner, in the writ petition filed, does not dispute the communication of the order passed by the Commissioner of Central Excise and Customs dated 13-4-2005. The primary case pleaded by the petitioner in the application filed for condonation of delay was that he was suffering from Rheumatoid Arthritis and therefore, he could not file the appeal within the time. In the same application, the petitioner has stated that since he had closed down his business and in order to earn more money, he had gone to Dubai. There is contradiction in the statement by the petitioner.

If, for any reason, the petitioner was of the opinion that without the supply of certain documents, as pleaded by him in the application, he could not file the appeal within the time prescribed under the Act, immediately after the service of the orders passed by the Commissioner of Central Excise and Customs, ought to have made an application before the authority for supply of those documents. He did not choose to do so. It is in the application filed for condonation of delay, the petitioner has taken up that contention. In our opinion, this contention cannot be accepted either by this Court or by any other reasonable person.

An appeal requires to be filed by a person if he is aggrieved by the orders passed by the Commissioner of Central Excise and Customs within the time prescribed under the Act. The discretion is vested in the Tribunal to condone the delay in filing the appeal, if sufficient cause is shown. What is sufficient cause is not defined in the Act. This expression is explained by the courts in several decisions. The courts have also said that the expression "sufficient cause" cannot be put in a strait-jacket formula.

Sri. O.V. Radhakrishnan, learned Senior Counsel appearing for the petitioner, would submit that the Tribunal while rejecting the application should have looked into the liability that was fastened by the Commissioner of Central Excise and Customs while passing the original order and according to the learned Counsel, that is one of the relevant factors for condonation of delay.

In our opinion, though the aforesaid assertion made by the learned Counsel for the petitioner is one of the factor, but that cannot be the sole factor for the purpose of condonation of delay in filing the appeal. It is for the applicant to satisfactorily explain the delay in filing the appeal and if the explanation offered for the delay is unsatisfactory, the Tribunal would be justified in rejecting the appeal.

As we have already stated, the cause shown by the petitioner was that he was suffering from Rheumatoid Arthritis and therefore, he could not file the appeal in time. Secondly, copies of the documents sought for by him were not furnished to him. That also prevented him from filing the appeal. In our view, the cause shown by the petitioner cannot be considered as "sufficient cause" to condone the delay of nearly two years in filing the appeal. Keeping all these aspects of the matter in view, in our opinion, the Tribunal has rightly rejected the application filed for condonation of delay.

In view of the above discussion, we are of the opinion that the writ petition cannot be entertained by us. Accordingly, we reject the writ petition.

Ordered accordingly.