2018 (9) TMI 988 – CESTAT MUMBAI – TMI – Condonation of delay in filing appeal – case of Revenue is that the reasons cited by the appellant in condoning such delay cannot be considered as sufficient cause that had prevented him from presenting the appeal within the period of 2 months against the order of the first adjudicating authority.
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Held that:- It is a settled principal of law that appellant had to show sufficient cause that prevented him to prefer appeal within the stipulated period but “sufficient cause” is a question of fact and the same is dependent on various factors/ situations, sickness being one of such cause – Section 86 (7) dictates the Tribunal to follow the same procedure as it exercises and follows in hearing the appeals and making orders under Central Excise Act 1994 and the Central Excise Act vide Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be ass
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Nadkarni, Advocate For the Respondent : Shri O.M. Shivadikar, AC (AR) ORDER Heard on the appeal and perused the Order-in-Appeal. It is found that Commissioner (Appeals), CGST & Central Excise, Nagpur has dismissed the appeal preferred before him by the present appellant on the ground that there was delay of 28 days in preferring appeal before him and the reasons cited by the appellant in condoning such delay cannot be considered as sufficient cause that had prevented him from presenting the appeal within the period of 2 months against the order of the first adjudicating authority. He has not gone into the merit of the case. 2. During hearing of the appeal, the ld. Counsel for the appellant submitted that the proprietor of the firm had submitted the order copy and other necessary documents to his Chartered Accountant Shri Amit Agarwal who earlier represented the appellant before various forums in the instant matter and the Chartered Accountant promised to get the appeal drafted and
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er in revision no. 7/2009/ST/Review dated 09.11.2009, which order number is also found reflected in the order of the Commissioner (Appeals) and the same indicates that the letter of authority was filed by Chartered Accountant Shri Amit Agarwal and Shri Atul D. Sarda with inward stamp of CESTAT, Mumbai. In the final Order-in-Appeal nos. SN/152 & 153/NGP dated 19.12.2008 passed by the Commissioner (Appeals), Nagpur, in which present appellant was respondent no. 1, name of Shri Amit Agarwal as the counsel for the respondent is also reflected. However, in this impugned Order-in-Appeal names of advocates Shri G.L. Deshpande and Shri Sanjay Agarwal are found mentioned to have represented the appellant during personal hearing. From the above factual aspect it cannot be denied that there was change of authorised representative made by the appellant for the purpose of filing of appeal before the Commissioner (Appeals) and the reason attributed by the appellant for such change of representat
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niently forgetting about the same. 7. In a judicial proceeding, it has to be borne in mind that due to narrow technicalities, substantial justice cannot be denied. Service of experts is hired and that itself would justify a person s sincerity in pursing his right of appeal to get the desired remedy and the same can never be equated with sub-letting the task and forgetting the same. In the instant case the appellant submitted that he was sick and his sickness was not doubted by the Commissioner (Appeals). Under the circumstances, a man of ordinary prudential would have come to the finding the appellant was prevented by sufficient cause to file the appeal at the appropriate time due to sickness. 8. In the case law reported in 1987 (28) ELT 15, it has also been held by the Hon'ble Supreme Court that when substantial justice and technical consideration are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested rig
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cedure as it exercises and follows in hearing the appeals and making orders under Central Excise Act 1994 and the Central Excise Act vide Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation. 11. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner(Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. Hon ble Supreme Court in Saheli Leasing & I
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