TMI Blog2017 (5) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the fact that when against the Order-in- Original other Appeal /Appeals at the instance of the co-noticee is /are pending before the learned tribunal, the learned tribunal ought to have condoned the delay even on imposing reasonable cost - on imposing reasonable cost to be deposited with the Commissioner of Central Excise, which the appellant has agreed to pay to the Department, delay caused in preferring the Appeal be condoned - appeal allowed - decided in favor of appellant. - TAX APPEAL NO. 838 of 2012 - - - Dated:- 5-5-2017 - MR. M.R. SHAH, AND MR. B.N. KARIA, JJ. FOR THE APPELLANT : MR D K TRIVEDI, ADVOCATE FOR THE OPPONENT : MR DHAVAL D VYAS, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable from the noticee besides proposing penalties under various provisions of law. The appellant herein was also included in the said show cause notice as co-noticee alleging that the appellant had issued bogus LRs enabling the main noticee to avail CENVAT credit fraudulently. The penalty was proposed on the appellant under Rule 26 of the Central Excise Rules, 2002 and Rule 13. The adjudicating authority passed Oder-in- Original dated 03/02/2010 and imposed penalty of ₹ 17.25 lakhs upon the appellant. Being aggrieved and dissatisfied by the Order-in-Original imposing the penalty of ₹ 17.25 lakhs upon the appellant, the appellant preferred Appeal before the learned tribunal on 03/02/2011. Since there was delay of 365 days in fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay and consequently rejecting the Appeal as well as the stay application on the ground of limitation, the appellant has preferred the present Tax Appeal with the aforesaid question of law. [3.0] Shri D.K. Trivedi, learned advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the learned tribunal has materially erred in not condoning the delay and consequently rejecting the Appeal on the ground of limitation. [3.1] It is vehemently submitted by Shri D.K. Trivedi, learned advocate appearing on behalf of the appellant that while passing the impugned order the learned tribunal has taken too hyper technical view. It is vehemently submitted that as such while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Vyas, learned advocate appearing on behalf of the revenue has tried to oppose the present Tax Appeal by submitting that in the facts and circumstances of the case when the learned tribunal has refused to condone the delay by giving cogent reasons and having not been satisfied with the cause shown by the appellant the learned tribunal has exercised the discretion judiciously, and therefore, it is requested to dismiss the present Tax Appeal. However, Shri Dhaval Vyas, learned advocate appearing on behalf of the revenue has fairly conceded that the Appeal /Appeals against the Order-in-Original at the instance of the co-noticee is /are pending before the learned tribunal. [5.0] We have heard the learned Advocates appearing on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. In the case of Ujagar Singh and Others (Supra) it is held that unless mala fides are writ large on conduct of the party, as a normal rule delay should be condoned. It is further observed that attempt should always be made to allow the matter to be contested on merits rather than throw it out on technicalities. Considering the aforesaid facts and circumstances and the law laid down by the Hon ble Supreme Court in the case of Ujagar Singh and Others (Supra) and from the conduct, behaviour and attitude of the appellant, it cannot be said that it had been absolutely callous and negligent in prosecuting the matter, for after it became aware of passing of the Order-in-Original, it prosecuted the matter with due diligence, and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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