Saraya Sugar Mills Ltd. vs Commissioner of C. Ex.

Heard Sri Anil Sharma, learned counsel for the appellant and Sri R.C. Shukla, learned counsel appearing for the Department. This appeal has been filed against the order dated 12th July, 2005 by which order the Customs, Excise and Service Tax Appellate Tribunal refused to condone the delay of one year and fourteen days in filing the appeal.

Brief facts necessary to be noticed for deciding the questions raised in the appeal are; the appellant preferred an appeal before the Commissioner, Central Excise (Appeals) being Appeal No. 411 against the order dated 27th November, 1997 passed by the Deputy Commissioner, Central Excise, Allahabad. The said appeal was heard on 3rd February, 2003 and ultimately disposed of on 17th November, 2003. The appellant filed a central excise appeal u/s 35-G of the Central Excise Act, 1944 before the Customs Excise and Service Tax Appellate Tribunal along with an application seeking condonation of delay in filing the appeal. In the application, which was filed for condonation of delay, the case took by the appellant was that although hearing took place on 3rd February, 2003 but no order was passed for long time and the appellant came to know only in the month of January, 2005 when the Range Officer asked to pay dues arising out of said order. The copy of the order was required from the office of the Commissioner which was received by letter dated 14th March, 2005 and thereafter appeal was filed on 1st April, 2005. The Tribunal considered the application and by order impugned, rejected the delay condonation application. The Tribunal noticed the explanation given by the appellant in the delay condonation application and made following observations:-

The ground for condonation of inordinate delay in filing the appeals is that, from time to time various persons were looking after the excise affairs of the company and they were interacting with consultant, namely Shri Anoop Misra, Asstt. Manager from 13-12-1989 to 1-2-1999, Mr. D.P.N. Singh, DGM upto February, 1999, Mr. Ashok Tripathi from 19-12-1999 to 28-2-2002 and Mr. R.P. Singh, Commercial Officer, left the company and after that nobody in the company was aware of the pendency of the Central Excise matter against the company and that the company became sick and the BIFR package was finally sanctioned in the year 2004 and the new management thereafter applied for the copy of the order. But all these facts, under the law, in my view, do not constitute a sufficient cause for condonation of the inordinate delay of over one year. The company was very much in existence. The change of the officers or leaving of the offices in the company did not stop the running of limitation for filing the appeal against the impugned order-in-appeal which was received by the company on 17-11-2003 through courier. The Director or the officials were on the pay-roll of the company at that time. It only shows that the company was too negligent and careless in handling the matter, and as such it cannot be allowed to take advantage of its own wrong. The impugned order had attained finality by lapse of time and the Revenue has acquired a valuable right there under and that right cannot be taken away from them simply because the appellant''s company was before the BIFR and the package was finally sanctioned to it in the year 2004.

Learned counsel for the appellant submits that order dated 17th November, 2003 was never served and even in the order impugned it was mentioned that it was served through courier whereas in the counter affidavit, which has been filed, no such material has been referred to or brought on the record to show any service of the order.

From the facts, which have come on the record, it is clear that hearing of the appeal took place on 3rd February, 2003 and the order was subsequently passed on 17th November, 2003. The observation of the Tribunal that the order was received by the Company on 17th November, 2003 through courier is based on no material. It does not appeal to reason that when the order has been passed on 17th November, 2003 how it can be received through courier on the same day. It may be another thing that some representative of the appellant may receive the copy of the order in the office itself on the same day but the observation without there being referring to any material is erroneous. More so, in the explanation given in the delay condonation regarding company being sick, it was under consideration before the BIFR, the package was finally sanctioned in the year 2004 and in the meantime there was change of officials, who were looking after the case, was sufficient explanation for condonation of delay. When there is no material to prove that the copy of the order was served on 17th November, 2003, the case of the appellant that it came to know about the order only in the month of January, 2005 has to be accepted. There was sufficient materials given by the appellant for condonation of delay and the Tribunal has erred in rejecting the application for condonation of delay.

In view of the aforesaid, we are of the view that the order of Tribunal cannot be sustained. The appeal was admitted on the question as to whether the appellant has sufficiently explained the delay. We answer the question in favour of the appellant. The delay in filing the appeal is condoned. The order impugned dated 12th July, 2005 deserves to be and is hereby set-aside. The Customs, Excise and Service Tax Appellate Tribunal may decide the appeal on merits in accordance with law. The appeal is allowed.