Hyva India Pvt. Ltd vs Commissioner Of Central Excise, ...

E/COD/24121/2014, E/COD/24122/2014, E/COD/24123/2014 in E/23597/2014-SM, E/23598/2014-SM, E/23599/2014-SM

Appeal(s) Involved:

E/23597/2014-SM, E/23598/2014-SM, E/23599/2014-SM

[Arising out of Order-In-Appeal Nos. 513 & 514/2013 dated 30/09/2013 passed by the Commissioner of Central Excise, Bangalore-I (Appeals)]

[Arising out of Order-In-Appeal No. 512/2013 dated 30/09/2013 passed by the Commissioner of Central Excise, Bangalore-I ( Appeals) ]

For approval and signature:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Hyva India Pvt. Ltd. Sy. No. 71, Thirumagondanahalli, Hosur Main Road, Attibele Bangalore  562 107 Karnataka Appellant(s) Versus Commissioner of Central Excise, Customs and Service Tax Bangalore-I Post Box No. 5400, CR Buildings, Bangalore  560 001 Karnataka Respondent(s)

Appearance:

Mr. Harish R, & Mr. Raghavendra B., Advocates Lakshmi Kumaran & Sridharan World Trade Centre No.404-406, 4th Floor, South Wing Brigade Gateway Campus No.26/1, Dr. Rajkumar Road, Bangalore - 560 055 Karnataka For the Appellant

Mr. N. Jagdish, AR For the Respondent

Date of Hearing: 12/01/2015 Date of Decision: 12/01/2015 CORAM:

HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order Nos. 20085-20087 / 2015

Per : ARCHANA WADHWA

All the 3 COD applications are being disposed of by a common order, though they arise out of two separate orders passed by Commissioner (Appeals). Both the orders of the appellate authority are dated 30.09.2013 and were received by the appellant on 07.10.2013. As such, taking into consideration the period of 3 months provided under the statute for filing the appeal, the limitation expired on around 06.01.2014. The appeals actually stand filed on 28.11.2014 with a delay of 325 days.

2. The appellant in their COD application have submitted that all the Central Excise matters were being looked after by their two employees one Mr. Ravishankar and the other Mrs. Paniveni G. After receipt of the impugned orders on 07.10.2013, the same were kept on the table of Mrs. Paniveni who was on leave and was due to resume office in the 3rd week of October 2013. As the said Mrs. Paniveni did not resume office and continued her maternity leave, the administrative charge of Mrs. Peniveni was handed over to Mr. Ravishankar. After taking charge of Mrs. Panivenis administrative work, Mr. Ravishankar lost sight of the impugned order and as such the appeal, which was required to be filed after taking permission from their Head Office located in Bombay could not be filed. It was only when half year financial auditing of all pending matters was done, the fact of non filing of appeal came to their notice and thereafter the same was filed.

3. In the above circumstances, learned advocate appearing for the appellant submits that the non filing of the appeal was not intentional and prays for condoning the delay. He draws my attention to the Honble Supreme Courts decision in the case of Collector, Land Acquisition Anantnag and Another Vs. MST. Katiji and Others [1987 (28) E.L.T. 185 (S.C)] laying down that no litigant stands benefited by lodging an appeal late and refusing to condone delay can result in a meritorious matter being thrown out at the very threshold. He also submits that as observed by the Honble Supreme Court substantive benefit should not be done away with on the basis of technical consideration. As such he prays that the delay be condoned and the matter be taken up on record for disposal on merits.

4. Countering the arguments learned DR strongly objects to the condonation of such a huge delay of 325 days and submits that no reasonable and justifiable cause stand shown by the appellant. He submits that even as per the appellant, Mr. Ravishankar was the second person who was also looking after the Central Excise matters, and as such, he was in a position to file the appeal. Learned DR also draws my attention to the impugned orders wherein it stands recorded that Mr. Ravishankar appeared before the authorities. As such he submits that for all Central Excise matters, it was Mr. Ravishankar, who was responsible and the appellant has not shown any evidence on record to substantiate their submission that Mrs. Paniveni is also responsible for Central Excise matters of the company. Learned DR has also referred to various decisions.

5. The issue required to be considered in the present appeal is as to whether there is any plausible and acceptable explanation for condoning the enormous delay of 325 days. The appellants have attributed the delay due to the maternity leave of Mrs. Paniveni. However I find that the said factor, if at all, would be relevant only if it is shown that it was the responsibility of Mrs. Paniveni to file the appeal. On the contrary it is appellants own contention that Mr. Ravishankar was also one of the employees looking after all the matters relating to Central Excise. It does not stand explained that if it was Mr. Ravishankar, who was responsible for filing the appeal, how the fact of Mrs. Paniveni going on maternity leave is relevant, especially in the absence of any evidence to show that it was Mrs. Paniveni who was dealing with Central Excise matters.

6. The question is as to whether such a reason given by the appellant for condoning the huge delay of 325 days can be held to be plausible and acceptable reason or the delay has to be held as having occurred on account of gross negligence on the part of the assessee. The Honble Supreme Court in the case of Office of the Chief Post Master General Vs. Living Media India Ltd. [2012 (277) E.L.T. 289 (S.C)] has considered the entire precedent decision on the issue including the Honble Supreme Courts decision in the case of Collector, Land Acquisition Anantnag and Another. It was observed by the Honble Apex Court that inasmuch as the appellant in that case was aware of its responsibility to file the appeal well within the limitation period, the delay cannot be condoned mechanically. The Honble Supreme Court observed that though they were conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of the assessee, liberal concession has to be adopted to advance substantial justice. However the Supreme Court did not accept the appellants claim on account of impersonal machinery and the inherited bureaucratic methodology of making several notes.

7. By applying the ratio of the above decision, I am of the considered opinion that the fact of one of the concerned employee, who in any case has also not been shown to be associated with the matter, going on maternity leave cannot be considered to be a reasonable cause for leading to such a huge delay of 325 days. The Honble Madras High Court in the case of Murali Match Works Vs. CEGAT [1992 (60) E.L.T. 546 (Mad.)] has observed that delay cannot be condoned when not sufficiently explained even by liberal standards, when the delay is substantial. By observing so, the High Court refused to interfere in the Tribunals order refusing to condone the delay, by holding that High Court is not an appellate authority to consider the validity of Tribunals order. In the case of A.K. Boards and Doors Vs. Union of India [2000 (115) E.L.T. 615 (Kar.)], the Honble High Court has upheld the validity of the restrictions imposed in terms of Section 35 of Central Excise Act as regards the time limit for filing the appeal.

8. Tribunal in the case of Mars Packaging Pvt. Ltd. Vs. CCE, Jaipur-l [2009 (233) E.L.T. 128 (Tri.-Del.)] has refused to condone the delay of 46 days claimed to have occurred on account of bona fide belief of the dealing person of the assessee that there was no need to file any appeal. Similarly in the case of United Telecoms Ltd. Vs. CC, Bangalore [2007 (207) E.L.T. 698 (Tri.-Bang.)] rejected the appellants application to condone the delay of 299 days. Similarly in the case of Shasun Chemicals & Drugs Ltd. Vs. CCE, Trichy [2002 (147) E.L.T. 342 (Tri.-Chennai)], delay of 29 days was not condoned by rejecting the appellants contention that the official dealing with the issue was out of station.

9. As already observed, the explanation tendered by the appellant for the delay in filing the appeal, is flimsy and does not inspire confidence. It is a clear case of latches on the part of the assessee in which case the ground of limitation cannot be diluted and the inordinate delay of 325 days cannot be condoned. Accordingly I reject the COD applications.

10. Inasmuch as delay has not been condoned, the appeals are liable to be dismissed as barred by limitation. I order accordingly.

11. All the 3 COD applications as also appeals get disposed of in above manner.

(Order pronounced and dictated in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER

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