Shree Royal Polyplast Industries vs Commissioner of Customs

M.R. Shah, J. (Oral). - Feeling aggrieved and dissatisfied with the impugned Order No. A/10845/2016, dated 31st August, 2016 passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zone Bench, Ahmedabad (hereinafter referred to as, "the Tribunal") passed in Application No. C/COD/10525/2016, by which, the learned Tribunal has refused to condone the delay of 114 days caused in preferred the appeal, which was arising out of the Order-in-Appeal No. OIA-VIII-48-267-EXP-AMD-MP & SEZ-15-16, dated 16th December, 2015 passed by the Commissioner (Appeals) of the Central Excise, Customs & Service Tax, Mundra, the original appellant has preferred the present appeal.

Against an Order passed by the Commissioner (Appeals), the appellant herein preferred an appeal before the learned Tribunal. There was a delay of 114 days in preferring the said appeal, and therefore, the appellant submitted an application requesting to condone the delay. The said application has been rejected by the learned Tribunal vide impugned order.

Having heard learned advocate Mr. Pratik Misra appearing on behalf of the appellant and learned advocate Shri Sudhir Mehta appearing on behalf of the Revenue and considering the submissions made in the application before the learned Tribunal requesting to condone the delay and the impugned order passed by the learned Tribunal, it appears that it was a case on behalf of the assessee that at the time of receipt of the order impugned before the Tribunal, the Consultant was out of country, and thereafter, the managing partner was also out of country and it was also the case on behalf of the appellant-assessee that the father of the Consultant was not well and had passed away and even his wife was suffering from breast cancer.

Considering the aforesaid facts and circumstances, we are of the opinion that the learned Tribunal ought to have condoned the delay in preferring the appeal since there does not appear to be any deliberate delay and/or negligence on the part of the appellant in not preferring the appeal within the period of limitation. By not preferring appeal within the period of limitation, as such, the appellant-assessee was not going to be benefited. Under the circumstances and so as to allow the appellant to submit the case on merits, rather than non-suiting the appellant on the ground of technical delay, when there does not appear to be any deliberate and/or wilful delay and/or negligence, the impugned order passed by the learned Tribunal in not condoning the delay deserves to be quashed and set aside.

In view of the above and for the reasons stated above, the present Tax Appeal succeeds. The impugned Order dated 31st August, 2016 passed by the learned Tribunal dismissing the application preferred by the appellant, which was submitted to condone delay in preferring the appeal, and the consequential order passed by the learned Tribunal dismissing the appeal deserves to be quashed and set aside and is hereby quashed and set aside. Delay caused in preferring appeal before the learned Tribunal is hereby condoned. Now, the learned Tribunal to decide and dispose of the Appeal No. C/11457/2016 in accordance with law.

Present Tax Appeal is allowed to the afore stated extent. No costs.