Lumno Industries Ltd. vs Commissioner of Central Excise

The Court: This appeal is directed against Order No. M-675/S-1563/A-867/Kol/2012 in MA-263/11 & SP-829/11 & Ex. Appeal No. 708/11 dated December 7, 2012, whereby the learned Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has rejected the application of the appellant for condonation of delay in filing the appeal being appeal No. 708 of 2011 before the learned CESTAT. An appeal lies to this Court from every order which involves a substantial question of law. An order rejecting an application for condonation of delay does not in our view involve a question of law.

However, we are informed that the order had been challenged by filing a writ application in this Court. The learned Single Bench rejected the writ application on the ground of existence of the alternative remedy of appeal, with liberty to the appellant to file an appeal. We are not inclined to reject the appeal on the technical ground that it involves no substantial question of law, since the Single Bench rejected the writ application on the ground of existence of alternative remedy of appeal. The appeal is, therefore, entertained.

Without going into technicalities, we deem it appropriate to consider the legality of the order impugned on its merits. There was apparently a delay of 73 days in filing the appeal before the Tribunal. The appellant submitted that the impugned order in appeal was received on February 22, 2011 by one of the security staff. The representative of the department, however, produced a copy of the acknowledgement wherefrom it appeared that a representative of the applicant had received a copy of the order under appeal on February 15, 2011. Having regard to the aforesaid discrepancy in the date of receipt of the order under appeal, the learned Tribunal rejected the application for condonation of delay, observing that the averment was contrary to the evidence produced. The Tribunal, thus, concluded that the Miscellaneous Application seeking condonation of delay failed to show sufficient cause and, accordingly, dismissed the Miscellaneous Application as also the appeal filed by the appellant.

It is now well established by a plethora of decisions that in considering an application for condonation of delay, the Court is to take a liberal view. The appellant is not obliged to explain each day''s delay. The delay is to be explained in substance. In the instant case for a trivial discrepancy of only 7 days where the delay was of 73 days, the learned Tribunal has not considered the explanation of the petitioner for the delay at all.

The learned Tribunal lost sight of the fact that the appellant was required to explain the delay from the last date of limitation till the date of filing of the appeal. If the appellant had 90 days to file the appeal from the date of receipt of the order sought to be challenged, the appellant need not have done anything at all for the first few days. The appellant could very well have become active only towards the end. In that view of the matter, the decision to dismiss the application for condonation of delay on the ground of a minor discrepancy in the date of receipt of the order sought to be appealed against, is not only unduly harsh, but also not sustainable in law. It is well settled that delay is to be explained from the last date of limitation onwards. What transpires during the entire period from the time when the order is received and the time when appeal becomes barred by limitation is not required to be explained. The appellant has only to show that there was sufficient cause for not filing the appeal on the last day of limitation and thereafter explain the delay. The impugned order cannot be sustained and the same is set aside. The learned Tribunal shall consider the application for condonation of delay afresh in the light of the observations made above.