CARBORUNDUM UNIVERSAL LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE stay application, early hearing and the appeal have come up for consideration against Order -in -Appeal No. 35/99, dated 8 -3 -99 by which the Commissioner (Appeals) has not condoned the delay and has dismissed the appeal at the threshold stage on the ground of limitation. It is contended by the appellant that the Commissioner (Appeals) can condone the delay for three months after the expiry of initial 3 months in terms of Section 35 of the C.E. Act. It is contended that there was a delay of 2 months and 16 days. The cause for delay was that the Order -in -Original was passed by Additional Commissioner and the preamble to the order -in -original stated that if the party was aggrieved by the order then they can appeal before the CEGAT. They were guided by the preamble and had filed an appeal before CEGAT. When the matter came up for consideration, the Tribunal noted that the appeal was not maintainable as the appellant was required to file an appeal before Commissioner (Appeals) and dismissed the appeal on maintainability by Final Order Nos. 541 to 544/99, dated 9 -3 -99. It is stated that the appellant filed an appeal before the Commissioner (Appeals) on 23 -2 -99 even prior to the dismissal of their appeal before CEGAT having realised their mistake in choosing a wrong forum. It is contended that bona fide mistake in choosing a wrong forum in filing an appeal is a sufficient ground for condoning the delay in filing an appeal. In this regard reliance is placed on the Tribunal judgment rendered in the case of Steel Authority of India v. CCE as reported in 1987 (31) E.L.T. 455. Further reliance is placed on the Tribunal's ruling rendered in the case of Tembe Steel Industries Pvt. Ltd. v. CCE as reported in 1990 (47) E.L.T. 386 wherein also the Tribunal has held that bona fide pursuit of the remedy in another forum is a sufficient cause for condoning the delay.

(2.) LD . Counsel submits that the Commissioner (Appeals) was not justified in not condoning the delay and by dismissing the appeal. Therefore he submits that in the light of the citations referred the appeal be remanded to the Commissioner (Appeals) with a direction to decide the case on merits.

(3.) DR opposes the prayer and pointed out that the Commissioner had relied on the Apex Court judgment rendered in the case of Ramagoivda and Ors. v. Special Land Acquisition Officer, Bangalore as reported in 1988 (2) SCC 142 wherein negligence, gross inaction and lack of bona fide of a party was considered to be a good reason to dismiss the appeal on time -bar.