Custom, Excise & Service Tax Tribunal
Dwarkadhish Sakhar Karkhana Ltd vs Commissioner Of Central Excise, Nashik on 10 May, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION Nos. E/COD/563/12 E/S/426/12 APPEAL No. E/314/12 (Arising out of Order-in-Appeal No. AKP/173/NSK/2011 dated 25.8.2011 passed by Commissioner of Central Excise & Customs (Appeals), Nasik) For approval and signature: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Dwarkadhish Sakhar Karkhana Ltd. Appellant Vs. Commissioner of Central Excise, Nashik Respondent Appearance: Shri T.C. Nair, Advocate, for appellant Shri Navneet, Additional Commissioner (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 10.5.2012 Date of Decision: 10.5.2012 ORDER NO Per: S.S. Kang Heard both sides.
2. The applicants filed this application for condonation of delay in filing the appeal. In paras 13 and 15 of the COD application, the applicants kept blank the space where the number of days of delay is to be mentioned. During argument, it has been submitted that there is a delay of 76 days in filing the appeal. The reasons for not filing the appeal within the period of normal limitation is that the office superintendent, Shri Sanjay Anant Tope, was advised rest by the doctor in view of back pain.
3. The learned AR appearing on behalf of the Revenue submitted that it is admitted by the applicants that the impugned order was received on 20.9.2011 and the appeal has to be filed within three months as per the provisions of Section 35B of the Central Excise Act. The appeal was to be filed on or before 20.12.2011. In pursuance of the impugned order passed by the Commissioner (Appeals), the jurisdictional Superintendent vide letter dated 15.12.2011 requested the applicants to deposit the amount in question. Thereafter the applicants deposited the amount in dispute on 7.1.2012 and 12.1.2012. In these circumstances, it cannot be said that the applicants were not aware of the passing of the impugned order, hence there is no reason to condone the delay.
4. We find that as per the provisions of Section 35B of the Central Excise Act, appeal is to be filed within three months from the date on which the order is communicated to the assessee and the Tribunal can condone the delay in filing the appeal on showing sufficient cause for not filing the appeal within the normal period of limitation.
5. In the present case, we find that the application for condonation of delay is filed in casual manner. We find that as per the applicants, the impugned order was received on 20.9.2011 and the appeal was to be filed on or before 20.12.2011. During this period, the Range Superintendent, vide letter dated 15.12.2011, directed the applicants to deposit the dues as per the adjudication order. We have gone through the letter dated 15.12.2011, a copy of which is on record. In this letter, the Superintendent specifically mentioned the date and number of the impugned order whereby the appeal filed by the applicants was rejected, and directed them to deposit the amount as per the adjudication order. This letter was received by the applicants on 30.12.2011. In spite of this letter, the applicants have not filed appeal. On the contrary, they deposited the duty on 7.1.2012 and 12.1.2012. The present appeal is filed on 6.3.2012. In these circumstances, it cannot be said that the applicants show reasonable cause for not filing appeal within normal period of limitation.
6. The only ground for delay is that the office superintendent, Shri Sanjay Anant, was advised rest due to back pain. There is no evidence produced by the applicants to show that the office superintendent did not attend the office during this period. In these circumstances, we find that the applicants failed to explain reasonable cause for not filing the appeal within the normal period, hence the COD application is dismissed. Consequently, the stay petition and appeal are also dismissed.
(Dictated in Court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President tvu 1 4