TMI Blog2017 (11) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... r it is always the great concern from the court in excise department when it is a question of refund of Cenvat Credit, the court has to be very gracious in the matter. If the litigation is really genuine, the matter requires immediate attention and moving the matter in 2004 and order filed in 2008 not moving for 8 years, the court has to be very slow and has no choice in the proceedings on the matter of delay condonation application. In our considered opinion, 2004 order even if we take from the Delhi High Court judgment, there is a delay of one year one month seven days which is very serious in nature when for explanation for the same is not there and application was moved after 9 years which further added fuel to the fire. The condonation of delay application though Mr. Ranka has submitted that the gross delay of more than 10 years is required to be accepted, we are not inclined to grant the delay condonation application looking to the bona fides the same requires to be rejected - In that view of the matter, since the file was reconstituted after order of 1st May, 2017, we are not inclined to grant the application u/s 5 of the Limitation Act. We are not considering the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safety razors and blades are under free supply. It is noted that in respect of one particular packing of plastic razor, the MRP of the razor is ₹ 23.50, which is the same as the price of 5 free supply blades. Thus, in respect of this packing, as a matter of fact, no duty will be payable on the razor manufactured by the assessee once the credit of duty in respect of the free supply blades is given is Cenvat Credit. Clearly, there is no value addition by the input (blades) so as to satisfy the requirement of Value Added Tax. In fact, the tax relief claimed on the input accessory, effectively makes the newly manufactured item, (razors) tax free. 4. The present appeal though moved and filed on 2nd September, 2008 but was not moved till this Court passed an order on 1st May, 2017 which reads as under:- The matter is listed on Board without original file. The file is either pending or disposed of but the original file is not traceable. Counsel for the parties are directed to reconstruct the file within a period of one week from today, if it is not decided on merits. If the file is not reconstructed within a week as aforesaid, the matter shall stand disposed of with li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the facts in detailed, it is true that the judgment was delivered in 2004, the appellant has gone to Delhi High Court but the appeal was filed on 2nd September, 2008 therefore, the contention which has been raised by counsel for the respondent in his reply which reads as under:- 7.3. That it is submitted that delay of 322 days and not 350 days in filing of appeal on 02.09.2008 is being admitted now before the Hon ble Court, that too when the same was pointed out by the counsel of the revenue department, the appellant/applicant now cannot be granted another chance to seek condonation of delay, that too after a lapse of more than 3542 (350+3192) days which is inexcusable and would amount to gross abuse of process of law. 8. However, in alternative he has also submitted as under:- 11. That in the contents of Paragraph No. 8 (a) the delay has been computed of 322 days which is incorrect and actual delay works out to 350 days which is calculated as hereunder:- Date from Date to No. of days 27-09-2004 (Date of CESTAT order) 11-10-2004 (Date of receipt of CESTAT order) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ji Ors. 1987 (28) E.L.T. 185 (S.C.) wherein it has been held as under:- 3. The legislature has conferred the power to condone delay by enacting Section 5 (Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- 1. Ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression sufficient cause . So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides. 12. He has also relied upon the decision in case of State of Nagaland vs. Lipok AO 2005 (183) E.L.T. 339 (S.C.) wherein it has been held as under:- 10. The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it was not tainted by any mala fide motive. 13. In State of Kerala v. E.K. Kuriyipe , it was held that whether or not there is sufficient cause for condonation of delay is a question of fact dependant upon the facts and circumstances of the particular case. In Milavi Devi v. Dina Nath : (1982)3SCC366a, it was held that the appellant had sufficient cause for not filing the appeal within the period of limitation. This Court under Article 136 can reassess the ground and in appropriate case set aside the order made by the High Court or the Tribunal and remit the matter for hearing on merits. It was accordingly allowed, delay was condoned and the case was remitted for decision on merits. 13. Counsel for the respondent submits that the issue is now covered by the decision of Delhi Tribunal in case of G.S. Enterprises vs. Commissioner of Central Excise, Jaipur 2014 (313) E.L.T. 340 (Tri.-Del.). Counsel for the respondent contended that the appellant has not moved application for delay condonation in proper form. Even assuming in 2008 the applicant has taken the ground which are made out in para 2 but the same was never considered and even contention regarding Delhi High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after hearing we are not satisfied to grant indulgence prayed for. Accordingly, the application seeking condonation of delay u/S 5 of Limitation Act stands rejected, as a consequence appeal becomes incompetent accordingly dismissed. 15. Another decision in case of Brahma Dutt Modi vs. Commissioner of Central Excise Jaipur 2014 (313) E.L.T. 42 (Raj.) wherein it has been held as under:- 8. We find no good ground to take a different view than the one taken by the Tribunal as we too have come to the same conclusion that there was no sufficient cause for condonation of delay in filing such application. 9. In the first place, the appellant not being an illiterate villager could not have taken an excuse that they did not know the legal provision relating to limitation to file such application. It is much more so when it being a company paying excise duty on regular basis is guided by legal experts on regular basis. Secondly; when the appellant is guided by experts in the subject (excise), it is not possible to hold that they would now know the provisions which govern limitation because such provisions are frequently applied by the lawyers in Tribunal for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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