2005 (98) ECC 242 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Bangalore

Dr. S.L. Peeran, Member (J)

Vijaya Steel Ltd., Bangalore

Versus

Commissioner of Central Excise,
Bangalore-II Commissionerate, Bangalore

E/cod/305/2004 in Appeal No. E/609/2004

[Arising out of Order-in-Original No. 09/2000 dated 14.3.2000, passed by CCE, Bangalore-II.]

Misc. Order No. 760/2004
Final Order No. 1493/2004, dt. 22.9.2004, Certified on 27.9.2004

Condonation of delay

Where there are clear latches and patent negligence condonation of delay cannot be allowed -- Appellants were aware of the impugned order and had not taken any steps to file the appeal -- Condonation of delay of 1454 days could not be allowed.

Appeal rejected

PRESENT :

Shri V.M. Doiphode, Adv. for the appellant.

Shri L. Narasimha Murthy, SDR for the respondent.

Cases Cited :

1. Arun Vyapar Udyog Ltd. v. CCE, Chennai, 2000 (121) ELT 420 (Tri)................... [Para 3]

2. Banta Singh Kartar Singh Iron & Steel Rolling Mills v. CEGAT, 2004 (170) ELT 271 (P&H) [Paras 3 & 5]

3. Kanoria Wisconsin Centrifugal Ltd. v. Collector of Central Excise, 1990 (48) ELT 596 (Tri) [Paras 4 & 5]

4. Vindhyachal Synthetics (P) Ltd. v. CCE, Bhopal, 1999 (113) ELT 525 (T).... [Paras 4 & 5]

Per : Dr. S.L. Peeran (Oral)

The appellant is seeking condonation of delay of 1454 days in filing the appeal against the impugned Order-in-Original No. 09/2000 dated 14.3.2000 determining the Annual Capacity of Production in respect of Hot Re-rolling Steel Mills installed at the appellant company. The contention of the appellant is that the impugned order was received by the Security incharge on Saturday, the 18th March 2000, who carried it to his home as the incharge Manager was not present on that day. The next day happened to be Sunday and on the subsequent day he totally forgot about it and never placed the impugned order to the Management of the appellant company. It is submitted that appellant had been issued with a Show Cause Notice on 10.5.2000 for the period November 1999 to March 2000 demanding duty. This Show Cause Notice relied upon the Order dated 19.3.1998 which was an order fixing ACP on provisional basis. Although the latest Show Cause Notice dated 14.3.2000 was issued, but he did not refer to the impugned order. Therefore, the appellants were unaware of the impugned order. It is stated that the appellants, when they appeared before the Commissioner, in respect of a remand order passed by the Hon'ble Tribunal directing the Commissioner to re-determine the Annual Capacity of Production on finalizing the same, they came to know from the Commissioner about the impugned order. They have taken steps to file the appeal.

2. We have heard Shri V.M. Doiphode the learned Advocate and Shri L. Narasimha Murthy, the learned SDR.

3. The learned Counsel submitted that the delay was not intentional. As they were not aware of the case, they should be given the benefit of condonation. He relied on the judgment of the Punjab & Haryana High Court Order rendered in the case of Banta Singh Kartar Singh Iron & Steel Rolling Mills v. CEGAT, 2004 (170) ELT 271 (P&H) wherein delay of 4 years was condoned on the ground that the Show Cause Notice has been challenged before the High Court by way of Writ Petition under Article 226 of the Constitution of India which was dismissed granting liberty to the appellant to pursue the alternative remedy of appeal. The High Court noted that as they had been given the liberty to pursue the alternative remedy, therefore, the delay was required to be condoned. The learned Counsel drew similar references to the present delay and prayed for applying the ratio of the judgment. He has also referred to the judgment rendered in the case of Arun Vyapar Udyog Ltd. v. CCE, Chennai, 2000 (121) ELT 420 (Tri) wherein the delay was condoned to an extent of more than year on the ground that the order had not been passed by the Commissioner as adjudicating authority and therefore, the order was infructuous in the eye of law and on that ground condoned the delay.

4. The learned SDR opposed the prayer and pointed out to the counter reply by the Commissioner. Para 2(d) which is re-produced here points out the details of the impugned order having been brought out in the proceedings which was participated by the appellants.

(d) The other contention of the applicant is that there was no mention in the Show Cause Notice dated 10.5.2000 of the Order dated 14.3.2000 regarding the fixation of the Annual Capacity of Production on final basis by the Commissioner. The present application before the Hon'ble CESTAT is for the condonation of delay (in filing the appeal), where they are required to put forth only their pleas for such condonation and are not permitted to advance any arguments which are directly on the subject matter of the appeal. Even otherwise, the above contention of the appellant is without any substance. It is to be seen that in the Order-in-Original No. 252/2000 dated 20.12.2000/30.3.2001, the original adjudicating authority (i.e. the jurisdictional Deputy Commissioner) had clearly brought out the fact of the fixation of the Annual Capacity of Production finally at 29,458.183 MT by the Commissioner of Central Excise, even though no specific mention is made about the Order No. & date. Similarly, the lower Appellate Authority viz., the learned Commissioner of Central Excise (Appeals), Bangalore had also indicated at Paras 6 & 8 of the Order-in-Appeal No. 684/2002 CE dated 7.11.2002 (without specifically indicating the Order No. & date) that the ACP had been fixed on final basis at 29,458.183 MTs by the Jurisdictional Commissioner of Central Excise. The only Order under which the ACP had been fixed finally was the Order-in-Original No. 9/2000 dated 14.3.2000 passed by the Commissioner, thereby, the Order referred to in the above mentioned Order-in-Original and Order-in-Appeal was only the Order-in-Original No. 9/2000 dated 14.3.2000. Thus, the fact remains that the applicants were already aware that the ACP had been fixed finally by the Commissioner of Central Excise.

It was pointed out by the SDR that the appellants were aware of the impugned order but had not taken any steps to file the appeal. The negligence is patent on record and, therefore, they should not be given the benefit of condonation of delay. He pointed out that the Counsel relies on Mumbai Bench Order condoning the delay in the case of Vindhyachal Synthetics (P) Ltd. v. CCE, Bhopal, 1999 (113) ELT 525 (T) on the ground that the factory was under lock-out and the watchman was not an authorized person, is not a correct law in terms of Larger Bench's judgment rendered in the case of Kanoria Wisconsin Centrifugal Ltd. v. Collector of Central Excise, 1990 (48) ELT 596 (Tri) wherein the condonation of delay was not accepted on similar plea of mis-placement of papers, as the unit was not a closed unit, but only a registered sick unit.

5. On a careful consideration of the submissions, we notice that the delay in the present case is enormous. The contention of the appellant that they were unaware of the order being passed is incorrect. The Security Officer had received the same and it is now pleaded by the appellants that the said order had not been placed in the hands of the Manager. The explanation does not appear to be correct one and the appellant is trying to put the blame on the Security, which cannot be accepted. There is no credence in this submission. Furthermore, the Revenue, in their counter reply in para 2(d), which is extracted supra, has brought out about the impugned order having been cited and in subsequent orders and the appellant had not been steps to procure a copy and file the appeal. In such a circumstance, it cannot be said that the appellants have taken all the steps necessary to file the appeal in time. Even according to the appellants, the Annual Capacity of Production had been determined provisionally and they could not have slept over the matter and subsequent Show Cause Notices were issued determining the amounts and calling upon them to discharge the duty. It followed that the appellants should have been diligent in the matter and could have taken steps to make enquiries about the impugned order. Incidentally they have stated that the impugned order had been cited in the subsequent Show Cause Notices and further orders passed. The appellants were fully aware as can be seen from the reply supplied by the Revenue about the impugned order. The Counsel has relied on the Punjab & Haryana High Court judgment in the case of Banta Singh Kartar Singh Iron & Steel Rolling Mills v. CEGAT. The facts are quite distinguishable by the reason that the Writ Petition had been filed challenging the Show Cause Notice and the same is dismissed granting liberty to the appellants to appeal before the CEGAT. In such a circumstance, the non-condonation of delay by CEGAT was held to be improper while in the present case, the appellant had not chosen to file any appeal against the impugned order. The counsel referred to the remand order of the Tribunal, which was on a different issue and on different Show Cause Notices, which were adjudicated by the authorities. The appellants cannot take shelter under these orders to seek condonation in a matter where there are clear latches and patent negligence. As the appellants were aware of the order and had not taken any steps to file the appeal, we are not in a position to condone the delay, which is very enormous of 1454 days. In the Mumbai Bench Order condoning the delay in the case of Vindhyachal Synthetics (P) Ltd. v. CCE, Bhopal, the watchman was served the order who was not considered to be the authorized person while in the present case the Security Officer has been served who was not a mere watchman. Therefore, the circumstances are different and the SDR relied on Kanoria Wisconsin Centrifugal Ltd. v. Collector of Central Excise (supra) wherein the delay was not condoned, is applicable to the facts of this case. Taking into consideration the overall facts and circumstances, we are not inclined do condone the delay of 1454 days. The COD application is rejected and as a result the appeal is also rejected.

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