M/S Natha Rama & Co vs Commissioner, Central Excise & Service ...

Appeal No.ST/10727/2015-DB [Arising out of OIA No.RJT-EXCUS-000-APP-157-14-15, dt.28.08.2014, passed by Commissioner of Central Excise & Service Tax, Rajkot]

M/s Natha Rama & Co. Appellant

Vs

Commissioner, Central Excise & Service Tax, Rajkot Respondent

Represented by:

For Appellant: Shri Jigar Shah, Advocate For Respondent: Shri Jitendra Nair, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No 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 Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:24.08.2015

Order No. A/11240 / 2015, dt.24.08.2015

Per: P.K. Das

The Applicant filed this application for condonation of delay of filing the appeal of 148 days.

2. The learned Advocate on behalf of the Appellant submits that the Applicant is a partnership firm. One of the partner Shri Parmar Dineshbhai Nathabhai received the impugned order and thereafter left the business. Therefore, the other partner was not aware of the receipt of the impugned order. He further submits that on the identical issue in their own case for the earlier period, the Tribunal granted unconditional stay that there is no malafide and/or negligence on the part of the Applicant.

3. On the other hand, the learned Authorised Representative on behalf of the Revenue submits that the Applicant had not made any averment as to how it came to their knowledge of receipt of the order. He submits that the Applicant had not produced any evidence as to whether the other partner retired from the partnership firm before filing of the appeal.

4. After hearing both the sides and on perusal of the records, we reproduce the relevant portion of the application as under:-

2. The delay in filing the appeal was due to the fact that Mr.Parmar Dineshbha Nathabha (Partner) of Applicants was the only person looking after all the legal affairs of the business till 02.05.2015. It came to the knowledge of Mr.Bhveshbhai Madhavajibhai Parmar, Partner of Applicants Company that Mr.Dineshbhai Narthabhai Parmar was not focusing on Companys work but started his own personal work and did not intimate them about the order passed by the ld.Commissioner (Appeals). Mr.Dineshbhai Nathabhai left the business in Applicants Company and as the Applicants came to know about the order, they are filing the current appeal with the application. Copy of the Affidavit of the Applicant, Mr.Bhaveshbhai Madhavajibhai Parmer, Partner, a concern person is enclosed and marked as Annexure-1. As and when the Applicants came to know about the subject Order-in-Appeal, they took immediate steps to file appeal against the impugned Order-in-Appeal.

5. We agree with the submission of the learned Authorised Representative for the Revenue that the Applicant had not produced any evidence of the retiring of the other partner from the firm. It is also not disclosed as to how it came to the knowledge in detail. It is well settled law that condonation of delay in filing of appeal is discretionary power. It cannot be exercised arbitrarily. It is to be looked into as to whether the Applicant was diligent and sincere in filing the appeal. It is also to be noted here that the Applicant had placed the facts in detail. In the present case, we find that the Applicant had not placed any material in support of their contention that the other partner has left the business. So, we do not find any merit in the application filed by the Applicant.

6. Accordingly, the application for condonation of delay of filing appeal is rejected. Consequently, the appeal is also dismissed.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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