2004 (97) ECC 391 (Tri)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL

South Zonal Bench -- Chennai

Shri P.G. Chacko, Member (J)

S.K. Lakshmanan, Partner

Versus

CCE, Salem

Appeals No. E/PD/243/2004 & E/478/2004

[Arising out of Order-in-Appeal No. 357/2003-CE(SLM) dated 29.12.2003 passed by the Commissioner of Central Excise (Appeals), Salem]

Stay Order No. 364/2004
Final Order No. 560/2004, dt. 12.7.2004, Certified on 20.7.2004

Appeal

Time-barred -- Delay of 12 days -- No formal application for condonation of delay -- The delay involved in the filing of the assessee's appeal was only to the extent of 12 days. But in terms of the proviso to sub-section (1) of Section 35 it was incumbent upon the appellants to make an application for condonation of this delay. Their Counsel's oral application for condonation was not enough. This is because the proviso required the appellate authority to record its satisfaction as to whether the assessee had shown sufficient cause for filing the appeal belatedly. Such satisfaction could be recorded only on valid reasons to be stated by the assessee, desirably, in an affidavit. This was not done Appeal is allowed by way of remand. The Commissioner (Appeals) is directed to dispose of the assessee's appeal in accordance with law, after taking a decision on their application (to be filed within thirty days from the date of receipt of a certified copy of this order) for condonation of delay.

Appeal disposed of accordingly

PRESENT :

Shri R. Balagopal, Consultant for the appellant.

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

Per : P.G. Chacko (Oral)

Having examined the records and heard both sides, I am of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly, after dispensing with pre-deposit, I take up the appeal.

2. The appeal is against an order passed by the Commissioner (Appeals) dismissing the assessee's appeal as time-barred. It appears from the record that there was a delay of 12 days from the date of expiry of the period of 60 days from the date of receipt of the original authority's order. But the party did not make any formal application for condonation of the delay before the Commissioner (Appeals). This fact is conceded by the Counsel today. Counsel, however, submits that, during the course of personal hearing, he had raised a specific plea for condonation of the delay, which the Commissioner (Appeals) rejected. I have heard the SDR also, who has defended the order of the Commissioner (Appeals).

3. The period of limitation for an appeal to be filed with the Commissioner of Central Excise (Appeals) was 60 days under Section 35 of the Central Excise Act at the material time. The proviso to sub-section (1) of Section 35 empowered the appellate authority to condone delay of up to 30 days. The delay involved in the filing of the assessee's appeal was only to the extent of 12 days. But in terms of the aforesaid proviso, it was incumbent upon the appellants to make an application for condonation of this delay. Their Counsel's oral application for condonation was not enough. This is because the proviso required the appellate authority to record its satisfaction as to whether the assessee had shown sufficient cause for filing the appeal belatedly. Such satisfaction could be recorded only on valid reasons to be stated by the assessee, desirably, in an affidavit. This was not done in the instant case. However, for the ends of justice, I am inclined to give an opportunity to the assessee to comply with the above requirement of law, as their Counsel has given an undertaking, today, for such compliance.

4. The impugned order is set aside and the present appeal is allowed by way of remand. The Commissioner (Appeals) is directed to dispose of the assessee's appeal in accordance with law, after taking a decision on their application (to be filed within thirty days from the date of receipt of a certified copy of this order) for condonation of delay. Of course, the party should be given reasonable opportunities of being heard in the application and the appeal.

5. In the event of the party's default in the matter of filing delay condonation application within the stipulated time, the impugned order shall stand restored.

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