TMI Blog2013 (12) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the COD applications deserved to be accepted. It is apparent on the face of record that in the applicants own case, for earlier period, the Tribunal passed Final Order, which was upheld by the Hon'ble Supreme Court - Once, it is ascertained that the lapse on the part of the applicant cannot be construed as gross negligence then length of delay is not so relevant - the applicant took initiative to file the appeal as evident from the e-mail communication - the applicant was not negligent and inactive - it is a fit case for condonation of delay of filing the appeals – Decided in favour of Assessee. - E/407 & 408/2011 - Misc. Order Nos. 41513-41514/2013 - Dated:- 21-6-2013 - P K Das And Mathew John, JJ. For the Appellant : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... handed over the files to their learned counsel for taking necessary steps. The learned counsel sent the draft of the appeal by e-mail. Unfortunately, the computer of the applicant crashed and all the information and mails could not be retrieved. (iv) In the meantime, the applicant was compelled to stop the production due to change of the Government policy insofar as packing of tobacco products from plastic pouch to aluminium pouch and ultimately all the staffs and workers were removed except one employee. (v) The relevant portion of the affidavit is reproduced below:- "I state that I was under an erroneous belief that the Central Excise duty dispute of brand name and SSI exemption has been finally decided in my favour vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred due to inaction and negligence on the part of the applicant and there is no reason for condonation of delay. He submits that the applicant received the draft of the appeal from her counsel and even then she did not file appeal, which would show her negligency. It is submitted that the contention of the applicant that she acted on bona fide belief is not supported by any material or facts. He submits that there is inordinate delay and it cannot be condoned and the Revenue is entitled to recover the duty from the applicant. He relied upon the decision of the Tribunal in the case of Star Drugs Research Labs Ltd. Vs. CCE, Chennai - 2005 (191) ELT 568. He submits that in the case of Toshiba An and Batteries Ltd. (supra), delay was only 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fide. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rspective, and on perusal of the records, it is seen that the Tribunal passed Stay Orders No. 829/2005 dated 3.10.2005; No. 9/2007 dated 3.1.2007 and No.547/2007 dated 7.6.2007 for the earlier periods and granted unconditional stay and Final Order was passed on 19.8.2010. Incidentally, the impugned orders, in the present case, were received by the applicant just before passing of Final Order dated 19.8.2010. It appears from e-mail communication that the learned Advocate sent the draft appeal on 22.9.2010. It may be construed from the above fact that the applicant was vigilant and diligent to follow up the proceedings time to time for the different periods. In this context, if we consider the reasons for delay in the present case as submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Collector of Appeals and restore the order passed by the Asstt. Collector. No order as to costs." In this case, we find that the issue has already been settled by the Tribunal in favour of the assessee and thereafter if the Tribunal is not exercising their discretionary power, it may be a mis-carriage of justice. 9.1 In the case of Jaya Engineering Works Ltd. Vs. Government of India - 1997 (90) ELT 19 (SC), two appeals were filed by the appellant. In that case, the Hon'ble Court allowed the first appeal on merit. In the second appeal, the Tribunal dismissed the appeal as there was delay of 38 days which was not satisfactorily explained. The Hon'ble Supreme Court set aside the order of the Tribunal as the other a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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