Custom, Excise & Service Tax Tribunal
Gupta Metallics & Power Ltd vs Commissioner Of Central Excise on 19 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II Appln.No.E/COD/93470/14 & E/S/93471/14 APPEAL No.E/85692/14 (Arising out of Order-in-Original No.57/2012/C dated 24/08/2012 passed by Commissioner of Central Excise, Nagpur) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 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 :Yes 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? ========================================
Gupta Metallics & Power Ltd., Appellant Vs. Commissioner of Central Excise, Respondent Nagpur Appearance:
Shri.P.V.Sadavarte, Advocate for appellant Shri.Ahibaran, Addl. Comm. (AR), for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 19/05/2014 Date of Decision : 19/05/2014 ORDER NO Per: P.R.Chandrasekharan
1. The COD application and stay petition are filed against Order-in-Original No.57/2012/C dated 24/08/2012 passed by Commissioner of Central Excise, Nagpur.
2. In the COD application, it has been stated that there is a delay of 439 days, over and above the stipulated period of 90 days in filing the appeal. The reason adduced for this delay is that Shri Jagdish Sharma, the authorised representative of the appellant company, who was looking after the matters relating to statutory compliances, legal matters, etc. was unwell and he was advised bed rest due to hyper tension with diabetics mellitus with infected wound in right foot with cellulites due to gangrene and was immobile. Due to his illness, the appellant company could not file the appeal in time. They also enclosed a medical certificate issued by Dr.J.N.Pande, Hutama Smarak Chikitsa Kendra, Nagpur, who certified that Shri Jagdish Sharma was under his treatment from 24/09/2012 to 15/01/2014. When the case had come up last time for hearing, the bench had directed the Revenue to verify the certificate and also to ascertain how the affairs of the company was run during the impugned period and a copy of the report given by the Jurisdictional Deputy Commissioner of Central Excise has been furnished. As per the said report, there are two Directors, namely, Shri Mahesh Gupta and Shri Anil Bhojak who were looking after the affairs of the company. Shri Jagdish Sharma is only an Excise Officer and authorised signatory of the company and the company had no manufacturing activity since November 2010. However, Shri Jagdish Sharma had attended the personal hearings before the Deputy Commissioner of Chandrapur on 17/10/2013 along with Shri Shri Sadavarte, Consultant.
3. The learned Counsel for the appellant submits that Shri Jagdish Sharma was looking after the affairs, the delay in filing the appeal ought to be condoned and he relies on the decision of the Honble High Court of Calcutta in the case of Reckitt Benckiser (I) Ltd. 2010 (249) ELT 512 (Cal).
4. The learned Additional Commissioner (AR) appearing for the Revenue on the other hand submits that the contention that Shri Jagdish Sharma was advised bed rest due to hyper tension with diabetics mellitus and was immobile is not borne out from the report of the jurisdictional excise officers. It is seen from the records that he had appeared for personal hearing before the Jurisdictional Deputy Commissioner and therefore, the explanation given by the appellant cannot be accepted.
5. We have carefully considered the submissions made by both the sides.
5.1 It is a settled position that it is not the length of the delay but the adequacy of the explanation that should be considered for condonation of delay. In the present case, the only ground adduced by the appellant is that Shri Jagdish Sharma was sick and he was advised bed rest due to hyper tension with diabetics mellitus and was immobile. This is no explanation as to why the Directors who were looking after the affairs of the company could not have filed the appeal. Further it is on record that Shri Jagdish Sharma, attended the personal hearings before the excise authorities in October, 2013. In these circumstances, the argument of the appellant that because of Shri Jagdish Sharmas illness, there was a delay in filing the appeal is not convincing. The Honble Apex Court in the case of Balkrishnan Vs. Krishna Murthy 1998 (7) SCC 123 had held that it is the adequacy of the explanation that matters and not the length of delay. The Honble Apex Court held that condonation of delay is a matter of discretion . length of the delay is no matter, acceptability of the explanation is the only criterion. In the present case, we do not find any such sufficiency in the explanation given by the appellant. Accordingly, we reject the application for condonation of delay in filing the appeal. Consequently, the appeal also stands dismissed.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 4