Customs, Excise and Gold Tribunal - Tamil Nadu
Tirupur Cotton Spinners And Weaving ... vs Commissioner Of Central Excise on 29 January, 1998
Equivalent citations: 1998(60)ECC446
ORDER
T.P. Nambiar, Member
1. The COD application and the appeal are filed against the order passed by the CCE(A). In fact the appeal is filed in time and there is no delay. Therefore, the COD application is not maintainable.
2. As far as the appeal is concerned, Shri Shivashanmugam, learned Counsel for the appellant submitted that there was a delay of 19 days in filing the appeal before the CCE(A) which was satisfactorily explained and therefore, he pointed out that the CCE(A) should have condoned the delay.
3. Shri Section Murugandi, the learned DR pointed out that this aspect was discussed by the CCE(A) in paras 5 & 6 of his order which are reproduced below:
5. But before I proceed to consider the merits, it is necessary to see whether the delay in filing the appeal is condonable or not. Under Section 35 of the Central Excise Act, 1944, the Commissioner (ADneals) can condone the delay upto three months if the appellants were 'prevented' by sufficient cause in filing the appeal within the statutory period of three months. Here the impugned order was admittedly received on 2.11.96 and so the time limit for filing the appeal expired on 2.2.97. Since 2.2.97 was Sunday, the appeal ought to have been presented atleast on 3.2.97. However, the appeal was received in this office only on 21.2.97. Thus, there is a clear delay of 19 days in filing the present appeal.
6. In the application dated 19.3.97 for condonation of delay, the appellants have stated that the office assistant of mill who was handling the general and inward correspondence, had filed the impugned order in a wrong file by oversight, that is to say, instead of filing the order in the relevant pending file, he had filed the same in a different file relating to MODVAT matters; that it was lost sight of till the internal auditors of the mill noticed the wrong filing on 15.2.97 and immediately they swung into action. They therefore requested to condone the delay.
4. I have considered the submissions made by both the sides. The learned Counsel in this connection relied upon the decision of the Tribunal in the case of Surendra Overseas Ltd. Para 9 & 10 of this order reads as follows:
9. The decisiosn of Supreme Court in Mst. Katiji was clearly dealt with by the Honourable High Court of Calcutta in the decision reported in 1991 (2) CLJ 403, wherein at para 3, their Lordships held as follows:--
3. As pointed out in the Division Bench decisions of this Court in (2) Somenath v. Vivek (92 Calcutta Weekly Notes 558) and in (3) State of West Bengal v. West Bengal Judicial Service Association (1990-2 Calcutta High Court Notes 162), as a result of later Supreme Court decisions in (4) Mst. Katiji and in (5) G. Ramegowada (), the apparent rigour of the observations in Rarnlal supra to the effect that delay may not be condoned even on proof of sufficient cause...therefore, or that each day's delay is to be explained has stood abated, mollified and modified.
10. The above decision clearly goes to show that the apparent rigour of the observations in Ramlal's case is modified. This case of Ramlal was relied on by the Tribunal in the decision . Therefore, that decision cannot help the respondents in this case.
5. Relying on the above said decision, I am of the view that the delay of 19 days in filing the appeal before the CCE(A) is to be condoned and accordingly I allow the appeal and remand the appeal back to the CCE(A) for de novo decision on merits after affording opportunity of hearing to the appellant in accordane with law.
Pronounced and dictated in the open court.