2019 (1) TMI 703 – CESTAT MUMBAI – TMI – Condonation of delay of 38 days in filing appeal – there was strike and unrest in the factory and jurisdiction police station namely Dahanu and Dy. Commissioner of Labour, Boisar were intimated by the appellant regarding such unrest – Held that:- 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.
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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 bef
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ike for which staff and workers were not cooperating the management and due to such non-cooperation attitude appellant was unable to trace the correct date of receipt of impugned order as the same was received by staff from whom the order was recovered and appeal was filed that caused delay of 38 days. 3. Learned counsel for the appellant, in referring to copies of police report etc. annexed to COD vide exhibit A pleaded that those documents would reveal unrest and strike by the staff not only in the month of November 2016 to September 2017 and December 2017 to January 2018 but argued that the unrest continued even when the matter was adjudicated upon and appeal was heard by the Commissioner (Appeals). He pointed out that due to such strike and unrest in the factory appeal could not be filed even before the Commissioner (Appeals) within the stipulated time and that formed the sole ground of rejection of appeal by the Commissioner (Appeals). He prayed for lenient consideration of the de
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39;ble Supreme Court in the decision reported in 2015 (322) ELT 192 (SC). 7. Be that as it may, the delay of 38 days in filing appeal which appellant attributes to the strike and unrest in its factory appears to be sufficient cause for the purpose of Condonation. It has been held by the Hon ble Supreme Court in 1987 (28) ELT 15 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 right in injustice being done because of a non-deliberate delay and there is no presumption that delay was occasioned deliberately. 8. In another decision, reported in (2001) 9 SCC 106, the Hon ble Supreme Court has observed that where the delay is of a few days, the court should adopt a liberal approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Whether the delay is inordinate, the consideration of prej
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he 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 & Industry Ltd. – 2010 (253) ELT 705 (SC) also proposed a guideline to be followed by quasi-judicial authority. In the instant case such a decision with reason on the merit of the appeal is not forthcoming. 11. As found from the order of Commissioner (Appeals), instead of taking up the issue of limitation at the earlier point of time, he had rejected the appeal after conclusion of hearing of the same on the ground of limitation and not touched on the merit of the case. 12. Since this Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of th
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