Malwa Concrete Udyog Pvt. Ltd. vs Commr. of Cus. and C. Ex.

Shri Z.U. Alvi, Advocate for the appellant. Shri S.A. Dharmadhikari, Advocate for the respondent.

This appeal is admitted on the following substantial question of law:-

"Whether in the facts and circumstances of the case, the appellant could make out a case for condonation of delay in filing the appeal before the Commissioner, Customs and Central Excise, Bhopal when the order was not served upon the appellant, it was served to an ex-employee of the appellant, thereafter the appellant was prevented to file appeal within time and it was sufficient cause for condonation of delay?"

Notice on behalf of the respondent is accepted by Shri Dharmadhikari.

With the consent of the parties, the matter is heard finally.

The short question involved in this appeal is in respect of condonation of delay in filing appeal before the respondent. An appeal was preferred by the appellant against the order passed by the Deputy Commissioner, Central Excise, Division-11, Bhopal dated 1-6-2011 on various grounds. By the order dated 1-6-2011, the appellant was assessed for payment of certain amount of Central Excise duty and was directed to make payment of the same as per the calculation on page 60 of the paper books.

As per the appellant, the order was not served on the appellant, but it was delivered to one Shri Gulab Mewade, who was an ex-employee of the appellant. Shri Gulab Mewade received copy of the order passed by the Deputy Commissioner on 3-6-2011, but handed over it to the appellant on 16-8-2011 and thereafter the appeal was filed on 14-11-2011. The aforesaid order was challenged before the respondent along with an application seeking condonation of delay on the ground that the order was received by the appellant from an ex-employee on 16-8-2011, the authorized signatory of the appellant was sick and he could not file the appeal within the limitation, however, the appeal was filed on 14-11-2011, which was beyond the period of limitation. On the aforesaid grounds, the appellant had sought condonation of delay, but the aforesaid application was rejected by the respondent by an order dated 20-3-2012, Annexure P/8. Against the order Annexure P/8, the appellant had preferred an appeal before the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, but the same has been dismissed by order Annexure P/1. Against this order, the appellant is before this Court.

Learned counsel for the appellant submitted that the order was not served on the appellant and it was served on an ex-employee of the appellant, therefore, the appellant could not file the appeal within the limitation as his authorized signatory was sick. Along with the application, the appellant had filed medical papers in support of the contention that his authorized signatory Shri Dinesh K. Agrawal was sick. In the application, it stated that the order was handed over to a third person and an affidavit of Shri Gulab Mewade was also filed. On the aforesaid grounds, it is submitted by the appellant, he had made out sufficient cause for condonation of delay and the respondent had wrongly dismissed the appeal as barred by limitation.

Shri S.A. Dharmadhikari, learned counsel appearing for the respondent opposed the aforesaid contentions. It was submitted by him that these particulars were not furnished in the application. The application was silent in this regard, though, affidavit of Shri Gulab Mewade was filed before the respondent, but in absence of such an averment in the application itself, the respondent had rightly rejected the application of the appellant, in which, there was no error. It is further submitted by Shri Dharmadhikari that this appeal is without merit and may be dismissed. At this stage, learned counsel for the appellant submitted that the appellant is ready to deposit the entire amount of duty along with the penalty within a period of 15 days before the respondent and on this condition the appellant may be permitted to argue the appeal on merits before the respondent.

We have considered the rival contentions of the parties.

In the application, Annexure P/7, the appellant had stated thus :

"2. The applicant/appellant''s factory and office are located near village Thoona which is midway between Bhopal and Sehore. Village Thoona being a small village where for the postal delivery system from point of delivery-Sehore Town to Pachama is rather primitive and non-dependable as regards time and manner of delivery. At times the postman does take the assistance of any known person coming from Sehore/Pachama side to Thoona, and in the hands of third person the time and manner of delivery becomes totally precarious and informal.

The learned DCCE-II/BPL''s OlO No. 08/ADJ/DC/BPL-II/2011, dated 1-6-2011 though perhaps posted in time was received by the applicant on 16-8-2011 i.e. a day after the independence day.

Further the applicant/appellant lost no time in deciding about filing of the appeal thereby crossing the normal statutory barrier of 60 days. Hence, this application for Condonation of Delay. An affidavit in support of this application is enclosed."

In support of the aforesaid application, the appellant had filed an affidavit of Shri Gulab Mewade, in which, he had specifically stated that he had left the job of appellant in May, 2011 and a postman though delivered the order to him, but he had delivered the same on 16th August, 2011 in the office of the appellant. The application was also supported by the medical certificate of Dr. Hitesh Sharma certifying that Dinesh K. Agrawal, authorized signatory of the appellant was sick at the relevant time.

Section 35 of the Central Excise Act, 1944 reads thus:-

"Section 35 Appeals to Commissioner (Appeals).-(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order:

Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented, by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days."

The aforesaid Section provides that an appeal can be filed before the Commissioner of Central Excise (Appeals) within a period of 60 days from the date of communication of the decision. The First Proviso also provides that if the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause form presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented with a further period of 30 days. Meaning thereby, within a period of 90 days from the date of order, an appeal could have been filed after seeking condonation of delay. In the present case, the order was communicated to the appellant on 16-8-2011 as per affidavit of Shri Gulab Mewade. The appeal was filed within a period of 90 days from that date. So far as the sufficient cause is concerned, if the order was delivered to an ex-employee of the appellant, then until and unless such an order is delivered in the office of the appellant, it cannot be said that it was communicated to the appellant. The medical papers were also filed along with the application in support of the contention that the authorized signatory of the appellant was sick during the aforesaid period. The provisions of condonation of delay are not penal in nature and it has to be construed liberally if a case is made out for condonation of delay. When the provisions is to be construed liberally, a party should not be deprived with its right of hearing the case on merits if the delay was sufficiently explained. The Apex Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, has held as under :-

"6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

Thus, it appears that making a justice oriented approach from the perspective, there was sufficient cause for condoning the delay in the case in hands.

In the present case, the appellant had not stated all/oil the facts in the application seeking condonation of delay about the documentary evidence filed along with the application, though appellant ought to have been pleaded these facts in the application itself. But after perusal of the application, affidavit of Gulab Mewade and medical papers of Dinesh K. Agrawal, we find that a sufficient cause was made out by the appellant for condonation of delay in filing appeal before the respondent. Accordingly, we condone the delay in filing appeal before the respondent.

Considering the aforesaid factual position, as discussed hereinabove, we allow this appeal with the following directions:-

(i) The appellant is permitted to deposit the entire amount of duty of Central Excise Rs. 2,98,195/- (Two Lac Ninety Eight Thousand One Hundred and Ninety Five) with the respondent within a period of four weeks from today.

(ii) The appellant shall also pay Rs. 5000/- (Five Thousand) by way of cost of the litigation to the respondent within the aforesaid period.

(iii) After compliance of the aforesaid condition within the aforesaid period, the respondent to restore file of appeal bearing F. No. 204-CE/BPL/APPL/2011/674 and shall hear and decide it on merits in accordance with law.

Certified copy as per rules.