2004 (97) ECC 367 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri P.G. Chacko, Member (J) and Shri Jeet Ram Kait, Member

Kanishk Steel Industries Ltd.

Versus

CCE, Chennai

Application No. E/COD/93/2001 in E/348/2001

Misc. Order No. 306/2004, dt. 7.6.2004

Appeal

Condonation of Delay -- Demand raised even after regular intimation has been made by the appellant for changing the parameters of mill twice -- Tribunal held that the demand and penalty imposed by revenue are bad in the light of the High Court's order -- The condonation of delay can be condoned if the party is likely to be put to gross injustice and irreparable legal injury in the event of delay not being condoned -- Section 35B of Central Excise Act.

PRESENT :

Shri S. Venkatachalam, Adv. for the appellant.

Smt. R. Bhagya Devi, SDR for the respondent.

Per : P.G. Chacko (Oral)

This application is for condonation of the delay of 267 days involved in the filing of Appeal No. E/348/2001 of the applicants. We have heard both sides and considered their submissions.

2. It appears from the records and submissions that, though there is no `self-contained' explanation for the delay, the peculiar circumstances of the case merit serious consideration for the ends of justice. The applicants were engaged in the manufacture of re-rolled products under the compounded levy scheme during the material period. Their Annual Capacity of Production (ACP, for short) was originally determined by the jurisdictional Commissioner of Central Excise and the same was communicated to them by the Asst. Commissioner in a letter dated 30.9.97, which was received, at the party's end, without any specific advice for filing the appeal if aggrieved. Apparently, therefore, the party took a long time to come to terms with the relevant statutory remedy. They filed an appeal with the Tribunal, which was delayed by more than 1500 days. That appeal was dismissed by the Tribunal on the ground of limitation. The aggrieved party approached the Hon'ble Madras High Court and the Court directed the jurisdictional Commissioner to pass a proper speaking order of determination of ACP in accordance with law. The Commissioner has passed an order on 16.1.2004 determining the ACP of the mill for the period relevant to the AC's letter dated 30.9.97 ibid. It is submitted by the Counsel that, they have since filed an appeal with the Tribunal [567/2004] against the Commissioner's order dated 16.1.2004 and the same is pending. In the meanwhile, it appears, the applicants had changed the parameters of their mill twice, firstly on 16.8.1997 and secondly on 15.10.98, both under intimation to the Commissioner.

Further, meanwhile, the department went on issuing show-cause notices demanding duty on the basis of the ACP communicated in the AC's letter dated 30.9.97 and such demands underwent adjudication in the hands of the Commissioner. It is reported that there are two orders passed by the Commissioner, one demanding duty and the other imposing penalty. It is also submitted that, against the said orders, appeals have been filed with this Tribunal and one of them figures in today's list before us. Prima facie, it appears, the demand of duty raised by the Commissioner and the penalty imposed by him are bad in the light of the High Court's order. The appeal immediately before us is the one challenging the Commissioner's order dated 1.2.2000, whereby the ACP was determined by him in view of change of parameters effected by the party on 15.10.1998 without taking into account the earlier (16.8.97) change of parameters though the latter was also made under intimation to the Commissioner. The essential facts stated above are not in dispute.

Prima facie, the above order of the Commissioner is not sustainable. If, in these circumstances, we do not entertain the present application, we will be rendering gross injustice to the assessee. It has been held by the Hon'ble Supreme Court that, in matters like condonation of delay of appeals, the question whether the party is likely to be put to gross injustice and irreparable legal injury in the event of the delay not being condoned is a relevant consideration. Following this ruling of the Apex Court, we must condone the aforesaid delay of the appeal. It is ordered accordingly.

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