Help Line vs Commissioner Of Central Excise And ...

[Arising out of Order-In-Appeal No. 335-2012 dated 31/07/2012 passed by Commissioner of Central Excise(Appeals) , MANGALORE ]

For approval and signature:

HON'BLE Smt. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Help Line Maharaja Building Rao & Rao Circle, MANGALORE - KARNATAKA Appellant(s)

Versus

Commissioner of Central Excise and Service Tax MANGALORE NULL 7TH FLOOR...TRADE CENTRE, BUNTS HOSTEL RD., MANGALORE, - 575003 KARNATAKA Respondent(s)

Appearance:

Shri DILIP KUMAR, Advocate NO.1375/A, 4TH CROSS, 'E' BLOCK, 2ND STAGE, RAJAJINAGAR, BANGALORE-560010 For the Appellant

Shri Pakshi Rajan, Asst. Commissioner(AR) For the Respondent

Date of Hearing: 19/02/2015

Date of Decision: 19/02/2015

CORAM:

HON'BLE Smt. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No.20395 / 2015

Per : ARCHANA WADHWA

The prayer in the application is to condone the delay of 41 days in filing the present appeal. As per facts on record, the impugned order was passed by Commissioner(Appeals) on 31/07/2012, confirming the demands against the appellant. The same was issued on 01/08/2012 to the appellant as also to various Revenue officers. As per the stamp appearing on the said Order-in-Appeal, the same was received by the Assistant Commissioner on 07/08/2012 and by the other officers on or around 9/10-08-2012.

2. However as per the appellant, the said order was not received by them, even though learned advocate fairly agrees that the address of the appellant shown in the said order is the correct address. He submits that subsequently they procured a copy from the Superintendent of Central Excise under his attestation, on 20/12/2012. However he fairly agrees that even if the said date of receipt is taken to be the correct date of communication, there is a delay of 41 days in presenting the appeal inasmuch as the normal period expired on or around 20/03/2013, the appeal actually stands filed on 01/05/2013.

3. Clarifying on the grounds of the delay, he submits that the appellant was down with Malaria during the period in question, thus leading to the delay. In support he produces a medical certificate on record given by the doctor, justifying the period of absence from duty for 45 days w.e.f. 14/03/2013 to 29/04/2013. He further submits that the said certificate has been given by the Government hospital and that is why the same refers to absence from duty instead of referring to the period of bed rest advised by the doctors. In such a scenario, he prays for condonation of the delay.

4. Countering the argument, learned AR vehemently opposes the said prayer of the learned advocate. It is the contention of the learned AR that the impugned order was dispatched by the office of the Commissioner(Appeals) on 01/08/2012 and stands received by various officers within a period of 8 to 10 days. As such, there is no justifiable reason advanced by the appellant as to why the said order was not received by him, especially when the address of the appellant reflected in the order is not being disputed by the appellants. Learned AR further submits that in such circumstances, there is no justification of non-receipt of the impugned order as shown by the learned advocate. He further submits that even if the date of receipt is taken as 20/12/2012, the period of 3 months for filing the appeal expired on or around 20/03/2013. As per the certificate produced on record, the appellant suffered from Malaria w.e.f. 14/03/2013 i.e. on a date prior to 6 days only from the expiry of the last date. The appellants have not shown anything to reflect upon the steps taken by them to prepare the appeal with an intention to file the same within period of limitation. Learned AR also draws our attention to the conduct of the appellant during the earlier proceedings before the Tribunal, when the matter was remanded by the Tribunal.

5. The case has chequered history. It is seen that the present proceedings are in de novo proceedings, when the matter was earlier remanded by the Tribunal. While filing the appeal against the earlier order, there was a delay of 48 days. Tribunal vide its order dt. 30/04/2008 refused to condone the delay on the ground that the reason of low back ache cannot be considered to be a sufficient reason for condoning the delay of 48 days. The said order of the Tribunal was challenged by the appellant before the Honble Karnataka High Court at Bangalore. Vide their order dt. 30/10/2009, the Honble High Court observed that the appellant had taken 14 adjournments before the Tribunal and did not care to argue the matter and accordingly their application for COD was rejected with consequent rejection of appeal and such conduct of the petitioner is totally disapproved. However after observing so, the Honble High Court held that one more opportunity should be given to the petitioner and accordingly the matter was remanded to Tribunal. The Tribunal vide its subsequent order dt. 12/05/2010, further remanded the matter to the original adjudicating authority. The present proceedings are passed in de novo proceedings by the lower authorities.

6. The above backdrop would show that the appellant is habitual in not sticking to the time limits provided under the law. When filing the first appeal against the earlier order of the lower authorities, there was a delay of 48 days and it is also a fact on record that the appellant did not cause appearance before the Tribunal on 14 times. Such conduct of the appellant was also not approved of by the Honble High Court but in the interest of justice the matter was remanded to Tribunal, by setting aside the Tribunas order refusing to condone the delay. We find the same conduct of the appellant in the present proceedings also.

First of all, we really fail to understand that the impugned order passed by Commissioner (Appeals) on 01/08/2012 stand received by all other concerned persons except the appellant. Learned advocate has also not been able to show us any documentary evidence on record to show as to how he came to know about passing of the present impugned order and consequently obtained an attested copy from the office of the Superintendent on 20/12/2012. There is no correspondence placed on record. Further even if, we accept the said date of receipt to be the correct reflection of facts, still the appeal does not stand filed within the period of limitation. When an assessee has already suffered so much on account of delayed filed appeal in the first round of litigation, we expect him to be more vigilant and careful in the next round of litigation. The appellant had not taken any steps to prepare and file the appeal even when there were only 6 days left for filing the appeal. The certificate given by the doctor showing that the appellant was suffering from Malaria is the only documentary proof placed on record without any efforts to place the doctors prescriptions or the other evidences to show that he was actually suffering from Malaria from 14/03/2013. Without commenting upon the certificate, we are of the view that even if the same is accepted to be the correct reflection of facts, the Malaria happened to the proprietor of the company only on 14/03/2013 i.e. 6 days prior to the expiry of the last date of limitation, we really fail to understand as to why the appeal was not prepared by that time and as to why no steps were taken by the appellant for filing the appeal by that time.

7. We are conscious of the fact that refusal to condone the delay results in denial of substantive benefits and affects the legal rights of an assessee to challenge the impugned orders. But then the delay cannot be condoned on filmsy grounds and there needs to be genuine grounds for condoning the delay.

8. In view of the foregoing, we find that there is no justifiable and reasonable cause for condoning the delay of 41 days. The appellant appears to be a person who is in the habit of delaying things without any justifiable cause or reason. We find no ground for condoning the delay of 41 days. Accordingly, the COD application is rejected and consequently the stay petition as well as the appeal get dismissed as barred by limitation.

(Order pronounced and dictated in open court)

B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER

Raja.

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