Custom, Excise & Service Tax Tribunal
M/S. Prag Bosimi Synthetics Ltd vs Commr.Of Central Excise, Guwahati on 12 June, 2012
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
MA (COD)- 40, 42 & 44/2011 (S.P. Nos.85, 86 & 89/2011)
&
Excise Appeal Nos.-50, 51 & 54/2011
(Arising out of the Order in Appeal Nos.80 & 87-88/CE (A)/GHY/2007 dated 9.10.2007 passed by the Commissioner (Appeals) of Customs & Central Excise, Guwahati read with CESTAT Order No. M-251-253/KOL/2011 dated 09.12.2011)
For approval & signature of:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE 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 Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
M/s. Prag Bosimi Synthetics Ltd.
APPELLANT(S)
VERSUS
Commr.of Central Excise, Guwahati
RESPONDENT(S)
APPEARANCE
Shri Arijit Chakraborty & Shri
Abhijit Chakraborty, Advocates
FOR APPELLANTS
Sri S.Misra, Addl. Commr. (A.R.)
FOR THE RESPONDENTS
CORAM:
SRI S.K. GAULE, HONBLE TECHNICAL MEMBER
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DATE OF HEARING & DECISION : 12/06/2012
ORDER NO.
Per SRI S.K. GAULE
Heard both sides.
2. The applicant filed these applications for condonation of delay of 1035 days. The contention of the applicant is that their factory was closed since 2006 and their registered office at Guwahati was almost non functional and only one peon and one senior staff were available who were not able to maintain the records of correspondence properly. Therefore, they could not ascertain the exact date of receipt of certified copy of the order in appeal. However on checking the records properly, they could find out that the certified copy was of the impugned order in appeal dated 9/10/2007 was received in their office on 08.01.2008. Therefore delay works out 1035 days instead of 1125 days indicated earlier in their miscellaneous application. The applicant reiterated that their factory was closed since 2006 and their Sr. General Manager (Commercial) Shri Paulson Albert who was looking after the Central Excise matters left the company and there was no one competent to look after the excise matter. Besides Shri Paulson, most of the Managerial staff of the company had left the company after the closer of the production. As the things improved, Shri Paulson finally rejoined the company on 1/1/2011 and after rejoining, he took over the charge of excise matters and thereby this appeal was preferred against the impugned order dated 9/10/2007.The contention is that the Central Excise Authority were well aware of the precarious condition of the company for all these years and they did not take effective steps to realize the dues pursuant to the impugned order. The contention is that the delay of 1035 days in preferring the present appeal is non intentional and it was due to prevailing circumstances. The applicants were struggling for their own existence and they were not in a position to pay for electricity etc. and there was a huge liability of hundred crores of rupees for construction from pillar to post. In these circumstances there was a delay of 1035 days.
3. The contention of Ld. A.R. is that the impugned orders are of dated 9/10/2007 and there is no denial of the fact that they were received by the applicant on 8/01/08. Hence the appeals were filed only on 7/2/11 and there is a delay of 1035 days. The contention is that mere leaving of the company by Shri Paulson does not change the facts and circumstances of the case. Moreover, the applicants failed to produce any evidence that Shri Paulson was not on the pay roll of the company when the factory was closed nor they could produce any documentary evidence that there was no one to look after the Central Excise matter of the company during the material period. The contention is that the applicants have participated in the proceeding before Commr.(Appeal) which is clear from the fact that they sought for adjournment for the personal hearing which is evident from the impugned order in appeal. The contention is that though Shri Paulson is said to have rejoined the company on 01/01/2011, the appeal is filed by one Shri Bharat Kr. Kakoti on 7 February, 2011. It is also pertinent that affidavit for condonation of delay is also filed by Shri Bharat kr. Kakoti on 20/1/12 which clearly establishes that Shri Paulson was not the only person to look after the Central Excise matter and to file appeal.
4. Ld. A.R. also brought to our notice the various balance sheets which show that salary was paid by the applicant company and the Central Excise duty were being shown as liability. Therefore the contention is that they were not aware of the liability and it has prevented them in not filing the appeal is not correct. Thus the applicants are not able to show sufficient cause for delay.
5.1 On an query from the Bench whether Shri Bharat kr. Kakoti was working with the applicant, the answer of Ld. Advocate appearing for the applicant was affirmative. Undisputedly there is a delay of 1035 days in filing the appeal. Applicant at no stage had disputed that they have not received the order in appeal on 8/1/2008. The only ground given by the applicant is that since Shri Paulson, General Manager (Commercial) who was looking after the Central Excise matter, left the company and rejoined on 01/01/2011 and thereafter only the company has filed the appeal.
5.2 We find that Shri Bharat Kr. Kakoti filed the appeals and has also filed the affidavit which goes to show that there is no denial of fact that Shri Kakoti was throughout with the company. Therefore the contention that as Shri Paulson had left the company they could not file the appeal and only on his rejoining they filed the appeal is not correct. As per Section 35B, the appeal is to be filed within three months from the date onward on which the order sought to be filed against is communicated. The Tribunal can condone the delay in case sufficient cause is shown in filing the appeal. In the present case, the applicant failed to show sufficient cause of delay in filing the appeal. Therefore the applications is not maintainable and is accordingly dismissed. Consequently the stay petitions and appeals are also disposed off.
(Operating part of the order already pronounced in the court)
Sd/- 21/6/12 Sd/- 21/6/12
(DR. D.M. MISRA) (S.K. GAULE)
JUDICIAL MEMBER TECHNICAL MEMBER
k.b./-
Excise Appeal Nos.-50, 51 & 54/2011
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