HANS METALS LTD Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) AFTER hearing for some time with reference to the stay petition filed by the assessee I felt that the matter itself can be disposed of, Accordingly, appeal was taken for regular hearing with the consent of both the sides.

(2.) THE Commissioner (Appeals) has dismissed the appeal on the ground that appeal was filed beyond the statutory period prescribed under Section 35 of the Central Excise Act. He observed that the appeal has been received in his office on 16 -3 -1999 and the order in original as admitted in the appeal was received by the appellants on 18 -12 -1997. Accordingly, appeal has been filed late by 11 months and 28 days. He was not convinced with the reason given by the assessee to condone the delay. He observed that "It is appellants' responsibility to the the appeal within the time limit and also it was the duty of the appellants to exercise proper control over the receipt/disposal of the important legal matters and to monitor the progress of the disposal. But it appears that they have not shown due diligance in the matter. For their neglect and casual approach, they can not get any benefit. The appeal is dismissed as time barred under Section 35 of the Central Excise Act, 1944".

(3.) ARGUING for the appellants, Shri R. Santhanam, learned Advocate submitted that admittedly there has been delay of nearing 12 months before the Commissioner (Appeals) due to unavoidable circumstances. He said that concerned employee Sh. K.B. Khare was hospitalised and he was the person who was handling the matter and in view of his illness the party/appellant could not file the appeal before the Commissioner (Appeals) well in time. The Commissioner (Appeals) should have condoned the delay in the facts and circumstances. Further, he argued that without going into merits whether there was delay or not before the Commissioner (Appeals), since the appeal is in time before the Tribunal and in view of the circumstances explained above the Tribunal has to decide the issue on merits. In support of his contention, he referred to the decision and observations made by the Supreme Court in the case of S.S. Rathore (Appellant) v. State of Madhya Pradesh reported in AIR 90 Supreme Court 10. Particularly he drew my attention to para 12 of the said decision which reads as under : -