By TIOL News Service

MUMBAI, JULY 20, 2013: A Notice of Motion was moved by the CCE, Mumbai-III for condonation of delay of 825 days in filing the Central Excise Appeal u/s 35G of the CEA, 1944 from the order of CESTAT dated 12 March 2010.

The Revenue submitted that the delay had occurred due to the fact that the appellant was prosecuting bonafide its application for rectification of mistake and thereafter the Writ Petition in this Court. Inasmuch as sufficient cause has been shown for the delay in filing the appeal, the same may be condoned, pleaded the Revenue.

Incidentally, against the order dated 17 th January, 2011 of the CESTAT dismissing the application for rectification, the CCE, Mumbai-III filed a Writ Petition on 30 th January, 2012 before the Bombay High Court.

The explanation offered in the affidavit in support of the delay in filing the appeal is as under:

"I say that the said delay is neither deliberate nor intentional but has occurred due to procedural formalities, which were required to be complied with by the different officials in the department in different stages of processing the papers. I say that in government offices, the matters are not decided by one authority alone but the papers are processed for approval and sanction by chain of officers from lower rung to the top, who are required to consider the case on merits and propose action to be taken and the said proposal from the lower rung is considered by superior authorities at different stages and ultimately the final sanction is accorded. I say that this process consumes reasonable time."

The High Court observed that even if it is assumed that the appellant had sufficient cause for the time taken in filing the application for rectification of mistake, there is no satisfactory explanation for the period of one year between 17 January 2011 when the application for rectification was dismissed by CESTAT and 30 January 2012 when the Writ Petition was filed in this Court. As regards the affidavit filed, the High Court remarked that the explanation was not at all satisfactory and thoroughly vague.

The High Court cited the Supreme Court decision in Office of the Chief Post Master General v. Living Media India Ltd. & Anr., (2012-TIOL-123-SC-LMT) and observed that the affidavit in support of the Motion does not give any explanation for the delay but merely states that the process takes reasonable time and moreover when the petitioners filed the Writ petition on 30 January 2012 the time to file an appeal under Section 35G of the Act had already expired.

After taking a look at the merits of the order of the CESTAT, the High Court observed that the Counsel for the Revenue was relying on the LB decision in BDH Industries Ltd. [2008-TIOL-1211-CESTAT-MUM] (which had already been considered by CESTAT in the impugned order and was distinguished as inapplicable) but was unable to point out as to why the distinction made by the CESTAT in the impugned order was not correct.

Holding that the High Court was not inclined to condone the gross delay in filing the appeal, the Notice of motion was dismissed.

(See 2013-TIOL-567-HC-MUM-CX)