M/s. Luk Plastcon Ltd. Versus CCGST & CE, Nagpur
Central Excise
2018 (12) TMI 337 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-10-2018
Application No. E/COD/86245/2018 in Appeal No. E/88107/2018 – M/86182/2018
Central Excise
Mrs. Archana Wadhwa, Member (Judicial) And Mr. Sanjiv Srivastava, Member (Technical)
Shri Hemant Suchak, Asstt. Manager (Comm) for the appellant
Shri D.S. Chauhan, Supdt. (AR) for the respondent
ORDER
Per: Archana Wadhwa
The delay in filing the present appeal is 215 days which stands attributed by the appellant to the concerned person having left the job without intimating the receipt of the Order-in-Appeal to the management. The appellants have submitted that they came to know about passing of the impugned order only when the revenue approached them for recovery of the dues in December 2017. Thereafter they approached the revenue for obtaining a copy of the order-in-original from the Range office and filed the appeal subsequent
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to benefit by resorting to delay and in fact he runs a serious risk.
Similarly, in the case of Namnath Sao Alias Ramnath Sahu & Ors. Reported in (2002) 3 Supreme Court Cases 195, the court observed that the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. The Hon'ble Supreme Court further observed that one thing is clear that the Courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception.
Further, in the case of Ummer reported in 2018 SCC Online SC 199, it was observed that “one cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since be
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ng of job by the concerned person, subsequent procurement of the copy from the Range office but keeping in view that the filing of appeal involves the right of the assessee to challenge the impugned order before the higher appellate forum and appreciating the fact the amount involved is only of Rs. 2.50 lakhs approx, as also by appreciating the prima facie merits of the case, and keeping in view the various Supreme Court decisions referred supra laying down that such refusal to condone the delay affects the assessee's right to appeal and as such a liberal approach should be adopted unless there are evidence to show that such delay was intentional, we are of the view that the delay should be condoned subject to the appellant paying some cost.
4. We also note that there is no evidence produced by the Revenue to establish the dispatch of the impugned order under registered AD or to establish the date of receipt of order by the appellant. In view of the foregoing and as the amount inv
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d in support of the contentions raised in the application for Condonation of Delay.
7. The appeal is a right but circumscribed certain condition. It is not an absolute right for the assessee. Appeal has to be filed within the prescribed period of limitation. In case of delay, appellant has to explain and thereafter only a Condonation of Delay can be allowed. In absence of plausible and just cause of delay, supported by necessary affidavits and document COD application should be dismissed and consequently the appeal.
In view of the difference between the two Members, the file is placed before the Hon'ble President for reference to Third Member for resolving the Difference of Opinion.
(Dictated in Court)
(Sanjiv Srivastava)
Member (Technical)
Difference of Opinion
Whether the delay has to be condoned subject to imposition of cost of Rs. 2000/- as held by the Member (Judicial) or the Condonation of Delay has to be rejected as the appellant has not given plausible and just explana
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