Customs, Excise and Gold Tribunal - Tamil Nadu
Star Drugs And Research Labs Ltd. vs Cce on 27 October, 2004
Equivalent citations: 2005(118)ECR207(TRI.-CHENNAI)
ORDER P.G. Chacko, Member (J)
1. This application by the appellants prays for condonation of the delay of 313 days involved in the filing of the appeal. The following reasons have been stated in this application:
a. An unfortunate fire accident had occurred on 29.7.2001 that had completely destroyed the Quality Control Department. The FIR filed in this regard would be self-explanatory. A copy of the FIR filed before the concerned Police Station is annexed herewith.
b. The Labour union had taken advantage of the situation to launch a protest against the labour policy.
c. There was a severe financial crisis during the above-mentioned period and only the junior most official was left to take care of the administration of the office and was not able to organise the Appeal against the adverse order passed by the Appellate Commissioner.
d. The factory was virtually left to the care of a clerk in charge who was having no knowledge of the Central Excise Account.
e. The hardship increased as the Consultant in these matters was away most of the time after he met with an accident. The affidavit of the Consultant, Mr. Ramdas is annexed herewith.
2. Heard both sides, Ld. Counsel refers to two affidavits in support of the reason stated in clause (e) above. One of these affidavits is by Shri M. Ramdas, Consultant, who was allegedly entrusted with the job of filing the appeal. In this affidavit, Shri Ramdas states that he had received the impugned order on 1.6.2002 but misplaced the order could not trace it in his office until the period of limitation for filing the appeal was over. He further states that he had met with a road accident on 6.9.2002 in Bangalore city and was hospitalized. It is stated that he was under treatment in a hospital till May, 2003. Shri Ramdas claims to have traced out the impugned order in the month of July 2003. The appeal was filed on 15.7.2003.
3. The other affidavit is by Shri K.A. Haffez. It does not disclose the official capacity of the deponent. Ld. Counsel has told us that Shri Haffez is the Managing Director of the appellant-company. This affidavit states that the Consultant was handling central excise matters and that the impugned order was delivered to him on 1.6.2002, the date on which the appellants had received the order. The affidavit of Shri Haffez does not even name the Consultant.
4. Ld. Counsel has argued that the delay of the appeal has been satisfactorily explained and ld. SDR has contested this plea. Ld. Counsel has claimed support from the Delhi High Court's judgment in J.M. Ramachndra & Sonsv. CEGAT , while ld. SDR has relied on the Tribunal's decision in Indian Creation Exports v. CC, New Delhi . SDR has also relied on the Madras High Court's Judgment in Quantas Engineers & Promoters (P) Ltd. v. T.N. Taxation Spl. Tribunal .
5. We have considered the submissions and the case law. The impugned order was served on the appellants on 1.6.2002. An appeal against that order ought to have been filed on or before 1.9.2002. The captioned appeal was filed on 15.7.2003, with a delay of 313 days. The reasons for this delay, stated in the present application, have already been reproduced in this order. Some of these reasons relate to a fire accident which allegedly took place in the appellants' quality control department on 29.7.2001. Such reasonscannot be accepted as they relate to an irrelevant period, that is, a period prior to the date of receipt of the impugned order by the appellants. Thus the first four reasons stated in this application are rejected as irrelevant. The only surviving reason for condontion of the delay is that the Consultant concerned was away most of the time after he met with an accident. In the affidavit filed by Shri K.V. Haffez, said to be the Managing Director of the appellant-company, states that the impugned order was handed over to the Consultant on 1.6.2002 itself. Shri M. Ramdas, in his affidavit, corroborates by submitting that he received the impugned order on 1.6.2002. This affidavit proceeds to explain the delay involved in the filing of the appeal. Shri Ramdas says that the impugned order happened to be misplaced in his office and could be traced only in the month of July 2003. He was allegedly in hospital from 6.9.2002 till May 2003, which plea is not supported by any medical certificate. We also find that there is considerable time gap between 1.6.2002 and 6.9.2002 on the one hand and between May 2003 and 15.7.2003 on the other. The delay involved in these intervals has gone unexplained in the present application.
6. Ld. Counsel has relied on the Delhi High Court's Judgment in J. M. Ramachandra & Sons (supra). In that case, a delay of 63 days involved in the filing of the appeal with this Tribunal was condoned by the Hon'ble High Court in its writ jurisdiction. Their lordships held that the expression "sufficient cause" under Section 129A of the Customs Act should be considered with pragmatism in a justice-oriented approach. In the instant case, we have already examined with pragmatism in a justice-oriented approach as to whether there was sufficient cause for the appellants under Section 35B of the Central Excise Act for not having filed the appeal within the prescribed period. We have found that the reasons stated in the instant application are not sufficient for condoning the delay. In the case of Quantas Engineers & Promoters (P) Ltd. (supra) cited by SDR, the Madras High Court refused to condone the delay involved in the filing of an appeal by the assessee before another Tribunal, after finding that the person-in-charge of the company did not take necessary precautions to ensure that the limitation provisions of law were conformed to. In the present case, the appellants could have made alternative arrangements in the wake of their Consultant having been hospitalised for long treatment. They did not even attempt such measures. In the case of Indian Creation Exports v. CC, New Delhi (supra), a delay of 322 days was not condoned by the Tribunal after finding that the delay had been occasioned by fraud of the Consultant concerned. We find some parallel between the instant case and the case of Indian Creation Exports v. CC, New Delhi (supra). Though nobody has a case that the Consultant in the instant case committed any fraud, he was grossly negligent in the matter of filing the appeal within the prescribed period. He misplaced the impugned order soon after its receipt from the appellants and traced it out only after more than one year! The appellants did not enquire about the progress of the appeal-filing matter during this period, either! Shri Haffex's affidavit has not taken into account this negligence of the appellants.
7. In the above circumstances, we are of the view that it will be a mistake in law on our part if we condone the delay of 313 days involved in the filing of the captioned appeal. Therefore, we reject this application and, consequently, the appeal. The application No. E/EH/237/2003 seeking early hearing of the appeal also stands dismissed.
(Dictated and pronounced in open Court).