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TMI Blog2019 (5) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... iled within three months from the date on which the order sought to be appealed against is communicated to the party preferring the appeal. Sub-section (5) of Section 35B, however, provides that the Appellate Tribunal may admit an appeal after the expiry of the relevant period referred to in sub section (3), if it is satisfied that there was sufficient cause for not presenting it within that period. As noticed above, the appeal should have been filed within three months from 12 May, 2017 but it was filed on 11 March, 2019. An application has been filed by the appellant under Section 35B(5) of the Act, 1944 for condoning the delay in filing the appeal. 2. A perusal of the order dated 31 March, 2017 that has been impugned in this appeal indicates that Central Excise duty was directed to be recovered from M/s Bhishma Pan Products Private Limited for operating seven machines in illegal manufacturing of Pan Masala and for recovery of interest and penalty and for confiscation of the seized goods. A penalty of Rs. 10 lakhs was also imposed upon the appellant, who is a Director of M/s Bhishma Pan Products Private Limited. 3. The records indicate that since the Company was not in a positi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5% of the duty demanded, the Company shall not pursue the matter but the Director and the employee may pursue the matter in accordance with law in their individual capacity in respect of penalties levied upon them. It is further stated that between 30 January 2019 and 12 February 2019, the applicant discussed the matter with the Advocates and was informed that the appeal can be filed by the Director subject to pre-deposit of Rs. 75,000/- and fee of Rs. 5000/- for filing the appeal. The applicant, accordingly, arranged the amount of Rs. 75,000/- for filing the appeal and Miscellaneous Application and also obtained the relevant documents from the Company. However, between 13 February 2019 and 27 February, 2019, the applicant had leave for Nepal due to some urgent business work and it is only on 1 March, 2019, that the applicant could hand over the documents with Demand Draft, pre deposit challan to the Authorised Representative to file the appeal. 5. Shri J.M. Sharma, learned Authorised Representative of the appellant has submitted that as soon as the Company resolved on 29 January, 2019 that the Company would not file the appeal and the Director could pursue the matter in accordanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, a delay of 578 days. 9. The appellant is a Director of M/s Bhishma Pan Products Private Limited. The Show Cause Notice dated 25 July, 2016 was not only issued to M/s Bhishma Pan Products Private Limited but also to the Directors and some other employees of the Company to show cause within 30 days as to why duty amounting to Rs. 17,82,20,200/- should not be demanded and recovered for operating seven machines engaged in illegal manufacturing of Pan Masala and why interest and penalty should not be imposed and the seized goods be confiscated. A common reply was filed both by the Company and the Directors and the employees to the aforesaid Show Cause Notice. The impugned order dated 31 March, 2017 not only directed for recovery of Rs. 17,82,20,000/- from the Company for operating seven machines illegally for manufacture of Pan Masala with direction for payment of interest and penalty and confiscation of seized goods, but also imposed a penalty of Rs. 10 lakhs on the Director (the present appellant) of the Company. It has been stated in the application that as the Company did not have funds to satisfy the requirement of pre-deposit, the Company filed a Writ Petition in the Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the delay in filing the appeal before the Tribunal, provided it was filed within 30 days from the date of order of the Supreme Court. 11. The decision was rendered by the Supreme Court on 23 January, 2018. There is nothing on the record to indicate as to what the appellant did between 23 January, 2018 up to 29 January 2019 when the Company resolved that it would not file an appeal but the Director could file an appeal in accordance with law. There was no necessity for the appellant to wait for any Resolution of the Company before filing the appeal. The appellant was a party in the Special Leave Petition before the Supreme Court. He was bound by the order passed by the Supreme Court that in case the appeal is filed within 30 days before the Tribunal, the Tribunal may consider it on merits, subject to the requirement of pre-deposit. In case the appellant desired to be heard on merits, it was necessary for the appellant to have filed the appeal before the Tribunal within 30 days from the date of decision of the Supreme Court. The applicant, however, waited for more than one year and two months before filing the appeal before the Tribunal, as the appeal was filed only on 11 March, 2 ..... 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