2011 (4) TMI 1062 - HC - Central Excise

Condonation of the delay of 85 days Held that - basic averments as to when the order of the Commissioner (Appeals) was received; when the concerned official left the appellant; when the appellant decided to file appeal; and when they are able to retrieve the records etc. are not even mentioned in the affidavit. A very bald allegation is made that the concerned official left the appellant and relevant records could not be placed it cannot be a sufficient ground for condonation of delay and in that view of the matter the order of the CESTAT is unexceptionable and does not involve any substantial question of law appeal is therefore dismissed

Summary

Issues:
Delay in filing appeal under Section 35B of the Central Excise Act, 1944; Condonation of delay by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT); Consideration of relevant material by CESTAT for adjudicating the appeal; Application of the test for condonation of delay by the High Court.

Delay in filing appeal under Section 35B of the Central Excise Act, 1944:
The appellant filed an appeal against the Order-in-Appeal dated 21-1-2009 passed by the Commissioner of Central Excise & Customs, challenging the adjudication on wrongful availment of input tax credit. The appeal faced a delay of 85 days, prompting the appellant to file an application to condone the delay. The reasons cited for the delay included the concerned official leaving service, the matter relating to an old period, and difficulties in locating necessary files and material. However, the CESTAT declined to condone the delay, leading to the appeal to the High Court.

Condonation of delay by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT):
The appellant, during the delay condonation application, sought time and submitted an affidavit of concerned officials to support their claims. The appellant argued that the CESTAT did not consider this material, which raised a question of law under Section 35G of the Act. However, the High Court noted that when an appellate authority rejects an application for delay condonation, the reviewing court must independently assess the application. Upon reviewing the affidavit, the High Court found the reasons for delay to be vague and insufficient. The affidavit lacked crucial details such as when the order was received, when the official left, and when the decision to file the appeal was made. The High Court concluded that the grounds presented were inadequate for condonation of delay, upholding the CESTAT's decision.

Consideration of relevant material by CESTAT for adjudicating the appeal:
The High Court emphasized the importance of a thorough review of the condonation of delay application. It stated that the basic averments regarding the timeline of events leading to the delay were missing from the appellant's affidavit. Merely stating that the official left and records were untraceable was deemed insufficient. The High Court held that such vague allegations did not warrant condonation of delay, affirming the CESTAT's decision as being reasonable and not involving any substantial question of law.

Application of the test for condonation of delay by the High Court:
After careful consideration, the High Court dismissed the central excise appeal, stating that the reasons provided for condonation of delay were inadequate. The Court found the appellant's arguments lacking in specificity and substance, ultimately upholding the decision of the CESTAT. The appeal was dismissed in limine, and no costs were awarded.