Custom, Excise & Service Tax Tribunal
M/S. The Indian Hume Pipe Co. Ltd vs Cce (St), Trichy on 22 July, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
ST/COD/741/2011 & ST/623/2011
(Arising out of Order-in-Appeal No. 180/2010 dated 18.10.2010, passed by the Commissioner of Central Excise (Appeals), Trichy).
For approval and signature
Honble Shri P.K. DAS, Judicial Member
Honble Shri MATHEW JOHN, Technical Member
__________________________________________________________
1. Whether Press Reporters may be allowed to see the : Yes
order for Publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair : Seen
copy of the Order.
4. Whether order is to be circulated to the : Yes
Departmental Authorities? __________________________________________________________
M/s. The Indian Hume Pipe Co. Ltd. : Applicant
Vs.
CCE (ST), Trichy : Respondent
Appearance Shri R. Sudhinder, Adv., for the Appellant Shri M. Ram Mohan Rao, DC (AR), for the Respondent CORAM Honble Shri P.K. DAS, Judicial Member Honble Shri MATHEW JOHN, Technical Member Date of Hearing : 22.07.2013 Date of Decision: 22.07.2013 FINAL ORDER No.40386/2013 Per: P.K. Das, The applicant filed this application for condonation of delay of 323 days in filing the appeal.
2. The Ld. Advocate on behalf of the applicant submits that the impugned Order dated 18.10.2010 was received by them on 21.10.10 and the appeal was filed on 02.12.2011. At that time, the Senior Executive (Taxation), the dealing person had gone on leave for his daughters marriage. He further submits that the Personal Secretary of the said Senior Executive (Taxation) had kept the order in a file and the file was misplaced. It was noticed only at the time of recovery proceedings initiated by the Central Excise Department. He submits that during the relevant period the Senior Executive (Taxation) was attending all the central excise proceedings. It is also submitted that the Senior Execute (Taxation) had attended personal hearing in person before the Commissioner (Appeals). He further submits that on the same issue, the Tribunal in 2008 passed the order in their favour as reported in 2008-12-STR-363 (Tri. Chen). The Ld. Advocate relied upon the decision of the Honble Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 and the Tribunal in the case of M/s. Robert Bosch Engineering and Business Solutions Ltd Vs. CESTAT, Bangalore 2013-TIOL-847-CESTAT-Bangalore.
3. On the other side, the Ld. Authorized Representative on behalf of the Revenue submits that the applicant is a Public Limited Company. There is no dispute that the order was received by the applicant and the appeal was filed after a long delay of about one year. He submits that it is a clear case of negligence and inaction on the part of the applicants. He further submits that the Senior Executive (Taxation) is not the only person in the Public Limited Company and some other person could have taken the steps to file the appeal in time. It is further submitted that the Senior Executive (Taxation) appeared in personal hearing in this matter before the Commissioner (Appeals) and he has not persuaded this matter regarding the receipt of the order. He also submits that the applicant had not filed any affidavit of Senior Executive (Taxation).
4. After hearing both sides and on perusal of the records, we find force in the submissions of the Ld. AR. The applicant in their COD application stated that the impugned order pertains to the Thanjavur factory, did not pursue the matter by drafting and filing of appeals and it was sent to their head office in Mumbai, since the applicant undertakes identical activities and has more than 20 factories across the country. It is also stated that when the impugned order was received by the Mumbai Office, the said Sr. Executive (Taxation) was on leave and was pre-occupied in his daughters marriage as on 23.11.2010. It is further stated that when the said Sr. Executive (Taxation) returned his duty, it was escaped from his notice as the impugned order had been filed in some other file. It came to their notice, after about one year, when the Department ascertained from the factory as to whether the dues under impugned order had been paid.
5. We agree with the Ld. Authorized Representative that mere misplacement of the file in a Public Limited Company cannot be a sufficient reason for condonation of delay. It is required to examine overall facts of the case as to whether the applicant was sincere and diligent in filing the appeal. The condonation of delay of filing of the appeal depends upon the facts of each case. It is well settled that the expression sufficient cause in the provisions of the Act, should be read in a liberal approach. But, the delay in filing appeal should not be condoned, if there is negligency and/or inaction on the part of the party. In a case of gross negligency and total inaction, the party is not entitled to get an order in his favour.
6. In the present case, we find that the factory sent the impugned order to Mumbai office and thereafter, there is no follow up action on the part of the factory. It is seen that the Sr. Manager (Taxation) appeared in personal hearing before the Commissioner (Appeals) and about more than one year, there is no effort to know whether any order was passed. The Ld. Authorized Representative rightly pointed out that the applicant had not filed any affidavit narrating facts in detail in support of their contention and a general statement was made in the application. It is also mentioned by the Ld. AR that the applicant would not file the appeal, unless the Department initiates recovery proceedings. There should be reasonable and acceptable explanation for the total delay ought to be condoned. The delay cannot be condoned by merely stating that the file was misplaced during the leave of Sr. Executive of a Public Limited Company. We do not find any satisfactory reason for condonation of such long delay.
7. The case laws relied upon by the applicant are not applicable in the present case. In the case of N. Balakrishnan (supra), the Honble Supreme Court condoned the delay of 883 days, where an ex-parte decree passed against the appellant. It is also pleaded non-action on the part of his advocate. The appellant complained about conduct of the advocate before the Consumer Forum. In the case of M/s. Robert Bosch Engineering & Business Solutions Ltd. (supra), the Tribunal condoned the delay by 63 to 147 days after considering the fact that the appellant on receipt of the order promptly emailed it to their Ld. Consultant, who appeared before the Tribunal. It was contented that there was technical hitch of emails between the appellant and the Ld. Consultant.
8. In view of the above discussion, we do not find any merit in the application. Accordingly, COD application is dismissed and the appeal along with the stay application are also dismissed.
(Order dictated and pronounced in the open Court)
Mathew John P.K. Das,
Technical Member Judicial Member
BB
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