1997 (1) TMI 178

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..... V.P. Gulati, Vice President]. - The prayer in the application is for dispensation of the pre-deposit of an amount of Rs. 39,300/-. 2. The learned Advocate Shri K. Narayanan pleading for the appellants that the learned lower appellate authority has not disposed of the matter on merits and has dismissed the appeal as barred by limitation since the same had been filed before the Commissioner .....

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..... uld have shown more diligence and taken steps to file the appeal within time. 3. The learned advocate has pleaded that the appellants had lot of confidence in him and had left the matter to him and they were confident that the appeal would be filed in time. He has pleaded that there was no luxity on his part in filing the appeal and it was only because of the circumstances beyond his control .....

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..... advocate party should not be made to suffer for the lapse on the part of learned advocate if any. He has pleaded that the appellants have good case on merits and has pleaded for dispensation of the pre-deposit of the amount as above. 4. Heard the learned departmental representative. 5. I have considered the pleas made by both the sides. I observe that this delay of 46 days in filing t .....

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..... ve arranged to file the appeal through another advocate. The appellants in our view cannot be penalised for delay in filing the appeal which had occurred in the hands of the learned advocate after they had entrusted the matter to him believing the appeal would be filed in time. The Hon'ble Kerala High Court in this regard has observed that in such cases the delay should be condoned. I observe that .....

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..... ned. Ordered accordingly. Since the delay has been condoned, the matter will be required to be decided on merits. The appeal is therefore remanded to the learned lower appellate authority for deciding the issue on merits after considering the question of pre-deposit under Section 35F of Central Excise Act, 1944 after affording the appellants an opportunity of hearing. The appeal is therefore allow .....

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