TMI Blog2014 (9) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... t the outcome of the appeal from the Interim Order. While considering an application for condonation of delay, no strait jacket formula is prescribed to come to the conclusion if sufficient and good grounds had been made out or not. Each case has to be weighed from its own facts and the circumstances in which the party acts and behaves. From the conduct, behavior and attitude of the appellant, the Supreme Court found that it could not be said that the party had been callous and negligent in prosecuting the matter. We are required to deal with a reasoned order of the learned Tribunal taking into consideration all relevant facts. It is reiterated that, had we been entertaining a delayed application, we might have condoned the delay on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 along with interest under Section 11AB and penalty under Section 11AC of the said Act read with Rule 173Q of the Central Excise Rules, 1944. 3. In the said show cause notice it was alleged that the appellant had cleared 609.990 M.T. of waste and scrap falling under sub-heading 4702.90, generated in course of manufacture of Paper and Paper Board without submitting proper declaration under Rule 173B of the said Rules, without properly accounting for the goods in the statutory records and without determining and depositing Central Excise duty payable thereon. 4. The appellant submitted its reply to the said show cause notice, by a letter dated 31st January, 2007, denying the allegations contained in the said show cause notice. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of violation of the principles of natural justice. The impugned order was also attacked as arbitrary. The appellant contended that the direction for deposit of 50% duty and penalty was not maintainable in law. 10. During the pendency of the appeal before the learned Tribunal, the learned Commissioner (Appeals) passed an ex parte Order-in-Appeal No. 34/HAL/09, dated August 26, 2009 dismissing the appeal for non-compliance of the direction of pre-deposit. 11. On receiving the order-in-appeal on August 31, 2009. the appellant made a prayer before the learned Commissioner (Appeals) for recalling the order dated August 31, 2009 and for restoring the appeal to its original file since the appeal before the learned Tribunal was pending. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50% pre-deposit against which the appellant filed an appeal on July 27, 2009. The appeal remained pending till February 26, 2012. The appeal was only dismissed on February 26, 2012. In the meanwhile, on August 26, 2009, the Commissioner (Appeals-I) passed a final order dismissing the appeal from the order of adjudication on the ground of non-compliance of the said order dated May 28, 2009. 17. As observed above, the appeal from the interim order was dismissed on February 26, 2012. The appellant received the order of the learned Tribunal on March 8, 2012. However, the appeal against the Final Order dated August 26, 2009 was filed on June 7, 2012. 18. The application for condonation of delay filed before the learned Tribunal reveals tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal by the Tribunal of an application for condonation of delay, Mr. Chakraborty cited the judgment of the Supreme Court in Improvement Trust, Ludhiana v. Ujagar Singh Ors., reported in (2010) 6 SCC 786, the orders of the Supreme Court in U.P. State Electricity Board v. Commissioner of Central Excise, Allahabad, reported in 2003 (154) E.L.T. 357 (S.C.), in Coronation Spinning India v. Collector of Customs, Calcutta, reported in 1999 (113) E.L.T. 376 (S.C.) and Jaya Engineering Works Ltd. v. Government of India, reported in 1997 (90) E.L.T. 19 (S.C.) and the judgments of the Karnataka and the Gujarat High Courts in Affiliated Computer Services (I) Pvt. Ltd. v. Commissioner, Bangalore, reported in 2012 (281) E.L.T. 191 (Kar.) = 2012 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t appears that the Commissioner (Appeals) decided the appeal ex parte. The appellants preferred an appeal to the Tribunal with a delay of nine months. The Tribunal has, by the impugned judgment, dismissed the appeal on the ground of delay. In our view, this is a fit case which should be heard by the Commissioner (Appeals) on merits. We, thus, set aside the order of the Tribunal as well as of the Commissioner (Appeals) and remit the matter back to the Commissioner (Appeals) to decide on merits. The appeal is disposed of 28. The order has obviously been passed by the Supreme Court in the special facts and circumstances before it and does not lay down any binding proposition of law. 29. In Coronation Spinning India (Supra), the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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