Shah Milk Processor Pvt. Ltd. vs Commissioner of C. Ex. (Adjn.)

The following common questions have been proposed for admission of these appeals:

Whether on the facts and circumstances of the case, the Appellate Tribunal had exercised its discretionary power judiciously by not condoning delay in case of the appellant?

Both the learned Counsel for the parties are prepared to argue the issue raised in these appeals even today.

Heard learned Counsel for the parties.

The short controversy raised in the issue is whether the Tribunal has rejected the application for condonation of delay by exercising it''s discretionary power judiciously. The delay is of about 6 months. Learned Counsel for the appellants submits that no satisfying reason has been given by the Tribunal for rejection of the application. Learned Counsel for the appellants has drawn our attention to the reasoning for the delay of six months, explained in the application. The same is reproduced below:

The appellant had filed appeal against the order of the respondent dated 29-4-2005 before the Customs, Excise and Service Tax Appellate Tribunal.

Since there was a delay in filing the said appeal, the appellant had moved an application for condonation of delay. During the course of proceedings, it was submitted that the application for condonation of delay lacked sufficient particulars and therefore, the appellant had filed an affidavit dated 25-8-2006, clarifying the reasons for delay (some typographical errors included). The order of the respondent was made on 29-4-2005, but the said order was never communicated and served upon the appellant. The appellant when received the notice for recovery from the Range Superintendent on 19-1-2006, became aware of such an order. Therefore, the appellant on 13-2-2006, wrote a letter to the Range Superintendent requesting to supply the copy of the said order. On very same day, the copy was supplied to the appellant and by the letter of the same day, the Range Superintendent informed the appellant that the said order was posted at the factory premises of the appellant. Immediately on receipt of the order on 13-2-2006, the appellant had sent the appeal to the Hon''ble CESTAT, West Zone, Mumbai on 8-4-2006 through certified courier. The Hon''ble CESTAT had dismissed the application of condonation of delay of the appellant on the ground that no satisfactory explanation has been given and therefore, consequently appeal of the appellant came to be dismissed as barred by limitation. The Appellate Tribunal has erred by overlooking that the business of the appellant was already closed down and the factory premises was also closed since long. The appellant had on becoming aware about passing of such order, had immediately moved to the concerned authority for certified copy of the order and on receipt of the same, filed the appeal within stipulated time. Therefore, in any case, the appeal was filed in time and there was no question of delay as claimed by the Tribunal. The Appellate Tribunal has not exercised its discretionary power judiciously and in the aforesaid circumstances, reasonable and lenient view was required to be taken in the case of the appellant in the interest of justice. There was no delay in the case of appellant and the same, if any, was on account of reasonable cause and same should have been condoned.

Considering the submissions and in the interest of justice, we condone the delay. Let there be substantial justice. We set aside the order dated 29-8-2006 passed by the Tribunal and sent back the matter to the Tribunal with a direction to decide the appeals on merit.

Both the Appeals stand allowed.