ARR ENTERPRISE Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) A common issue is involved in both the appeals and therefore, both are taken up together for disposal. The applicant filed these applications for condonation of delay of filing appeals. There are delay of 285 and 250 days in Appeal Nos. E/407/2011 and E/408/2011 respectively. The appeals should have been filed before the Tribunal on or before 30 -10 -2010 and 4 -12 -2010 in Appeal Nos. E/407/2011 and E/408/2011 respectively. Both the appeals were filed on 11 -8 -2011. The reason for the delay as narrated by the applicant in their applications as well as the affidavit of Mrs. Lailaa Subramaniayam, Proprietrix of the applicant firm are common, briefly as under: -

(2.) THE learned counsel on behalf of the applicant submits that there were several demands on the same issue and the Tribunal granted unconditional stay in all the cases. Further, the Tribunal by Final Order dated 19 -8 -2010 dropped the demand on this issue for earlier periods except the initial period of demand and the Tribunal order was upheld by the Hon'ble Supreme Court. Despite that the applicant took steps for filing the appeal as evident from the e -mail communication. However, she was under the bona fide belief that as the issue has already been decided by the Tribunal, there was no need to proceed in the matter. The learned counsel submits that the Central Excise officers insisted to pay the duty against the impugned orders as there was no Tribunal order and then the applicant filed these appeals. He submits that the Hon'ble Supreme Court in the case of Collector of Customs, Cochin v. Toshiba Anand Batteries Ltd. - : 1997 (90) E.L.T. 16 (S.C.) held that delay in filing the appeal is condonable when in similar matter the order was set aside on merit. He submits that considering the overall facts and circumstances of the case, the delay may kindly be condoned.

(3.) AFTER hearing both sides, we find that Section 35B(3) of the Central Excise Act, 1944 provides that every appeal under this Section shall be filed within three months from the date of which the order sought to be appealed against is communicated to the parties preferring the appeal. Sub -section (5) of Section 35B of the said Act had given a discretionary power to the Appellate Tribunal to admit an appeal after the expiry of the relevant date referred to in sub -section (3) of the said Act, if it is satisfied that there was sufficient cause for not presenting it within that period. The words "sufficient cause" for not preferring the appeal within such period is also mentioned under Section 5 of the Limitation Act, 1963. In that context, the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Mst. Kathiji - : AIR 1987 SC 1353 : 1987 (28) E.L.T. 185 (S.C.) had laid down the guidelines as under: -