TMI Blog2014 (5) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... - The imposition of penalty is neither automatic nor could be mechanical, as, for such order imposing penalty, the basic requirement of suppression, wilful misappropriation or fraud must be shown. The CESTAT factually found that there has been no suppression, wilful misappropriation or fraud on the part of the first respondent-assessee. This being a factual finding not concerning with any law, much less substantial question of law - Decided against Revenue. - M.P. No. 1 of 2012 in C.M.A. SR. No. 49629 of 2012 - - - Dated:- 5-9-2012 - D. Murugesan and V. Ramasubramanian, JJ. Shri K. Ravi Anantha Padmanabhan, SCC, for the Petitioner. Shri R. Raghavan, Advocate, for the Respondent. ORDER This petition, at the instance of Commissioner of Central Excise, Chennai-IV Commissionerate, is filed for condonation of delay of 1590 days in filing the Civil Miscellaneous Appeal challenging the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 14-6-2007, passed in Final Order Nos. 728 and 729 of 2007 [2007 (219) E.L.T. 515 (Tri. - Chennai)]. 2. The first respondent-assessee was issued with a show cause notice dated 26-2-1999 asking to show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner. The CESTAT, by the same order, also dismissed the appeal filed by the Revenue seeking for modification of the order of the Commissioner imposing equal amount of penalty under Section 11AC of the Act for the transaction during the period prior to 28-9-1996. 4. The Civil Miscellaneous Appeal, at the instance of the Commissioner, challenges both the above orders. In filing the Civil Miscellaneous Appeal, there is a delay of 1590 days. In order to explain the delay, on behalf of the petitioner, the Deputy Commissioner of Central Excise and Service Tax has filed an affidavit and the relevant paragraphs are as under :- 4. Against the order passed by the Tribunal (CBSTAT), we filed the above CMA on 4-2-2008. The final order was passed by the Tribunal on 14-6-2007 and it was directly dispatched to the office of our Chief Commissioner who received it on 27-6-2007. I respectfully submit that normally, a true copy of the CESTAT order will also be sent to our Commissionerate in addition to sending a copy of the order to the office of the Chief Commissioner. But in this case, the CESTAT did not send a copy of the order to the office of the appellant and hence the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department. In fact, our officers also went to his office and helped in locating the bundle. Despite best efforts, it could not be located for over three years. Therefore, on the advice of the present standing counsel, we are filing the CMA case papers afresh along with an application to condone the delay in filing the CMA besides dispensation with the certified copy of the impugned order. However, we are applying for a certified copy of the order from the Tribunal which will consume some time. Therefore, for the production of original certified copy of the impugned order may be dispensed with. However, we have filed and enclosed a true copy of the impugned order. 7. I respectfully submit that the delay is neither wilful nor wanton. It is beyond the control of the department and the above circumstances have rendered us unable to produce original CMA papers. The delay of 1590 days is calculated from 5-2-2008 before which date the CMA ought to have been filed. But since the original papers have been misplaced and we are unable to retrieve it, we are constrained to calculate the period of limitation vide CMA Sr. No. 10696 of 2008. 5. We have heard Mr. Ravi Anantha Padmanabhan, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above submission. Before going into the merits on the demand of duty and the consequential imposition of penalty by the original authority, which was later on set aside by the CESTAT, it should be considered as to whether the petitioner, who is the appellant-revenue, has satisfactorily explained the delay in filing the appeal. 10. The facts culled down from the affidavit filed in support of the petition would go to show that the final order was passed by the CESTAT as early as on 14-6-2007. The said order was directly despatched to the office of the Chief Commissioner, who admittedly received it on 27-6-2007. The appeal should have been filed within a period of 180 days from 27-6-2007, i.e., on 27-12-2007. But, such an appeal was filed only on 4-2-2008. The delay between 27-12-2007 and 4-2-2008 is sought to be explained on the ground that the true copy of the order of the CESTAT has not been forwarded to the Commissionerate directly. However, there is no explanation as to why the appeal could not be preferred within the period of limitation, when admittedly the copy of the order, which was directly sent to the Chief Commissioner s office and which was received on 27-6-2007. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible to obtain the returned case papers of the above CMA . 13. From the above narrated events, we could not satisfy ourselves regarding the delay in filing the Civil Miscellaneous Appeal. The only contention is that as the papers filed on earlier occasion could not be traced, the present Civil Miscellaneous Appeal has been filed with delay. As the above explanations are not acceptable, merely because a fresh Civil Miscellaneous Appeal has been filed, the same would not be a ground to condone the enormous delay of 1590 days. Recently, the Apex Court in Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563 = 2012 (277) E.L.T. 289 (S.C.), tracing the powers of the Court to condone the delay with reference to sufficient cause, has observed in paragraphs 27 and 28 as follows :- 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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