Prem Heavy Engineering Works vs CESTAT

We have heard Sri Suyash Agarwal for the appellant. Sri S.P. Kesarwani appears for the respondents. This Central Excise & Custom Appeal u/s 35G of the Central Excises & Salt Act, 1944, has been filed against the order dated 3-3-2005 [ 2005 (192) ELT 774 ], by which the Custom Excise & Service Tax Appellate Tribunal, dismissed the application for condonation delay, and consequently the appeals were dismissed. The Tribunal has found that the Commissioner (Appeals) granted personal hearing, to the appellant. The matter was heard on 28-1-2004 and the order was passed by the Commissioner (Appeals) on 6-2-2004. The order was communicated to the appellant on the address given by appellant.

The appeal before the Tribunal was delayed by little less than eleven months, and in any case even if the date of knowledge i.e. 9-9-2004 (which was the date on which it is alleged that the file was inspected, and the certified copy of the order was obtained), had to be taken into consideration for condoning the delay, there was 41 days delay in filing the appeal.

The Tribunal did not find the explanation for condoning the delay, to be sufficient. The Tribunal found that the Advocate for the assessee-appellant had appeared before the Commissioner (Appeals) for personal hearing. Even at that time, if the factory was closed, the new address for correspondence was not intimated to the Commissioner (Appeals). It was submitted before the Tribunal, that the Managing Director of the appellant was the only responsible officer left in the factory, and the delay of 41 days in filing the appeal was due to sickness of the Managing Director.

Sri Suyash Agarwal has relied upon decisions in Collector, Land Acquisition v. M/s. Katiji & Others [1987 UPTC 2128]; Auto Centre Vs. State of Uttar Pradesh and Others, and Raj Kumar Sirohi v. Commissioner, Income Tax, Ghaziabad & Another [Income Tax Appeal No. 370 of 2008, decided on 7-12-2011]. In these judgments, the Court held that the rules of limitation are not to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for legislatively fixed period of time.

u/s 35B(3) of the Central Excise Act, 1944, an appeal may be filed before the Appellate Tribunal within three months from the date on which the order sought to be filed against, is communicated to the Central Excise Commissioner or as the case may be, the other party preferring the appeal. Under sub-section (5), the Tribunal has power to condone the delay, if there is sufficient cause for not presenting the appeal within the period prescribed.

In the present case the Tribunal has recorded the finding that the appellant was negligent, and that he did not satisfactorily explain the delay, inasmuch as when the Advocate of the appellant argued the matter before Commissioner (Appeals), he did not give the address for communicating the order. The appellant had given his address as M/s. Prem Heavy Engineering Works, Partapur, Delhi Road, District Meerut in the Tribunal. It was the same address on which the order of the Commissioner (Appeals) was communicated. We find that even in this appeal, the same address has been given, namely, M/s. Prem Heavy Engineering Works, Partapur, Delhi Road, District Meerut. If the factory was closed and closure of the factory was the main ground on which the application for condonation of delay was filed, the appellant should have given the correct address, atleast, in this appeal.

We further find that the affidavit in this case has been sworn by Sri Mukesh Kumar Gupta, Office Assistant in the office of the appellant, and which also shows that there are other employees working in the company, who could have been deputed, to file the appeal in time. The appellant was itself responsible for not communicating the correct address. In fact there was no other address, as the appellant has continued to provide the same address both in the appeal before the Tribunal as well as in this appeal.

The cases cited by the counsel for the appellant are not applicable to the present case, as the Tribunal has come to the conclusion that the delay was deliberate.

We do not find any error in the order of the Tribunal in dismissing the appeal of the appellant on the ground of delay, which was not sufficiently explained.

The grounds raised in the appeal do not raise any substantial questions of law to be considered in the appeal. The Central Excise & Customs Appeal is dismissed.