Custom, Excise & Service Tax Tribunal
M/S. Texcel International (P) Ltd vs Cce, Coimbatore on 4 April, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
E/COD/40511/2013 & E/S/40512/2013 & E/40724/2013
(Arising out of Order-in-Appeal No. 218/2012 dated 12.10.2012 passed by the Commissioner of Central Excise (Appeals), Coimbatore)
For approval and signature:
Honble Shri P.K. Das, Judicial Member
1. Whether Press Reporters may be allowed to see the Order for Publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether the Members wish to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental authorities?
M/s. Texcel International (P) Ltd. Appellant
Vs.
CCE, Coimbatore Respondent
Appearance Shri P. Dileep Kumar, Advocate, for the Appellant Shri P. Arul, Superintendent (AR) for the Respondent CORAM Honble Shri P.K. Das, Judicial Member Date of Hearing: 04.04.2014 Date of Decision: 04.04.2014 Final Order No. 40262/2014 The applicant filed this application for condoning the delay of 73 days involved in the filing of the appeal.
2. The learned counsel on behalf of the applicant submits that they received the impugned order on 16.10.2012. He submitted that their Senior Manager Shri Ramakrishnan who was in-charge of the factory had submitted his resignation on 22.6.2012 and thereafter he was under some stress and he was relieved from employment with effect from 19.2.2013. It is submitted that on 24.3.2013, the central excise officers informed them that the impugned order was issued against them. After searching the file, they found that Shri Ramakrishnan had received the order but no step was taken. Ultimately, the appeal was filed on 4.4.2013 with a delay of 73 days. He submits that there is no negligency or inaction on the part of the applicant and the delay was caused due to the Senior Manager had not placed the impugned order before the management. He relied upon the decision of the Tribunal in the case of Birdy Exports Pvt. Ltd. Vs. Commissioner of Service Tax, Bangalore 2009 (240) ELT 532. He also filed an affidavit in support of their contention.
3. On the other hand, the learned AR on behalf of Revenue submits that the appeal was filed after the pursuance of the Department. He further submits that after resignation of the Senior Manager, the applicant had not taken any initiative to file the appeal. He relied upon the decision of the Larger Bench of the Tribunal in the case of Kanoria Wisconsin Centrifugal Ltd. Vs. Collector of Central Excise 1990 (48) ELT 596 wherein it has been held that misplacement of papers is not a sufficient cause for condonation of delay under Section 35B(5) of the Central Excise Act, 1944.
4. After hearing both sides and on perusal of the records, I find that the order was received by the applicant on 16.10.2012. Shri Ramakrishnan had submitted his resignation before receiving the order i.e. on 22.6.2012. It is noted that Shri Ramakrishnan was relieved from the service on 19.2.2013. The applicant had not taken any initiative to search the file for filing the appeal. On perusal of the impugned order, it is found that Shri Ramakrishnan appeared in personal hearing on 28.8.2012 before the Commissioner (Appeals). It is difficult to accept the averment in COD application that Shri Ramakrishnan submitted his resignation on 22.6.2012 and during this period, he was under some stress, for the reason, after filing resignation, he attended personal hearing before Commissioner (Appeals). It is not a case of misplacement of order, but, it is a clear case of gross negligence and inaction on the part of the applicant. Hence, there is no reason for condoning the delay of filing appeal. Accordingly, the COD application is dismissed. Consequently, the appeal along with stay application also gets dismissed.
(Dictated and pronounced in open court) (P.K. Das) Judicial Member Rex 3