2009 (8) TMI 422 - HC - Central Excise

Condonation of delay- Delay of 479 days in filing the appeal. Taxation manager of the company left the service. factory manager who was not conversant with the paper works relating to the matter was misled by a photocopy of receipted Form No. ER-2 and gave a wrong idea to management that appeal had been filed. Appeal could not be filed becaue of inaction of the tax manager of company although he was instructed by superior authority to prefer an appeal. Better justice is always done if a lis is decided upon contested hearing. Members of Tribunal substantially erred in law in not granting the application for condonation of delay. Held that- delay condoned subject to deposit of Rs. 10, 000/-

Summary

Issues:
- Whether the tribunal erred in dismissing the application for condonation of delay in filing the appeal?

Analysis:
The judgment pertains to an appeal filed against the imposition of duty and penalty under the Central Excise Act on ultra marine blue laundry grade manufactured by a company. The appellant objected to the claim, leading to a hearing before the Commissioner of Central Excise. The Commissioner confirmed the duty and penalty, which was received by the company's factory. However, due to miscommunication and the taxation manager leaving the company, the appeal was not filed within the stipulated time.

The company, under the impression that the appeal had been filed, later realized the mistake when the Superintendent of Central Excise communicated that no appeal had been filed. The delay in filing the appeal was 479 days, attributed to the mismanagement by the taxation manager and the factory manager's misunderstanding based on a receipted form EA-2. The tribunal below had held that the company acted mala fide, but the High Court noted that there was no mala fide intention and that the company did not stand to gain by not filing the appeal on time.

The High Court acknowledged the considerable delay but emphasized that there was no mala fide intention on the part of the company. The Court found that the tribunal erred in law by not granting the application for condonation of delay. Consequently, the High Court allowed the appeal, condoning the delay subject to the payment of costs within two weeks. If the costs were not paid, the appeal would stand dismissed. The Court directed the tribunal to dispose of the appeal and related application on merits and in accordance with the law, with all parties required to act on a signed copy of the order.