Mohd. Yousuf Ali S/O Haji Abdul Hameed vs The Commissioner of Central Excise (Appeals)

1. By this COD Application, the appellant is seeking delay of two years in filing the appeal. The Order-in-Appeal was passed on 19.2.2004 confirming Service Tax. The appellant had challenged the Order-in-Original No. ST/26/2003 dt. 11.9.2003 before Commissioner (A). After the dismissal of this appeal, the appellant was required to have filed an appeal before this Tribunal. However, he did not file an appeal, instead he made a representation to the Secretary, Ministry of Finance by his letter dated 9.8.2004.

2. The learned Counsel appearing for the appellant submits that the appellant is an ignorant person and was not aware of the procedure to file an appeal before the Tribunal. He submits that the Apex Court judgment rendered in the case of N. Balakrishna v. M. Krishnamurthy has condoned the delay of 883 days and hence, the delay in this case is much less and prays for condoning the delay.

3. The learned JDR files the list of judgments and submits that in similar cases inordinate delay has not been condoned by the Apex Court. He refers to Vedabai @ Vaijayanatbai Baburao Patil v. Shantaram Baburao Patil wherein the Apex Court has held that the delay can be condoned only when sufficient cause has been shown. He further submits that no sufficient cause has been shown in this case and therefore, the Tribunal judgment rendered in the case of CCE, Bangalore v. ITC 2005 (192) ELT 623 (Tri.-Bang.) will apply to the facts of the case, wherein the Revenue appeal with 667 days delay was not condoned in the light of several judgments of the Apex Court and the Tribunal. The Tribunal has followed the judgments rendered by the Apex Court rendered in the case of Commissioner v. Maruti Udyog Ltd. ; Commissioner v. Agro Extracts Ltd. 2002 (142) ELT 6 and several other rulings. He also relies on CC v. Carborandum Universal Ltd. and CCE, Jalandhar v. British Motor Car Co. Ltd. 2006 (149) ELT 405 (Tri.-Del.) wherein delay of 265 days was not condoned in the light of Apex Court and Tribunal rulings. Further reliance is placed on the ruling of Precision Tooling Systems Ltd. v. CCE, Bangalore 2004 (176) ELT 551 (Tri.-Bang.), Karnataka High Court judgment rendered in the case of A.K. Boards and Doors v. UOI ; Andhra Pradesh High Court ruling rendered in the case of Shanti Alloys Pvt. Ltd. v. CCE, Hyderabad 1999 (109) ELT 79 (A.). He further relied on the following rulings.

(i) HMT Ltd. v. CC, Chennai

(ii) Delta Impex v. CC (ACU), New Delhi 2004 (173) ELT 449 (Del.)

(iii) Bharat Nandlal Kalyani v. CC (Prev.) 1988 (36) ELT 645 (T)

(iv) CCE, Madras v. Lucas TVs Ltd.

He submits in the light of these judgments, the delay of inordinate days cannot be condoned. He points out that the Apex Court in the case of N. Balakrishna v. M. Krishnamurthy cited supra by the learned Counsel is distinguishable, as in that case, the delay was caused due to the failure of the advocate to inform the appellant as well as his failure to take action. Therefore, it was held that there was no negligence on the part of the appellant in filing the appeal. He submits that in the present case, the appellant was aware of the rejection by the Commissioner (A) of his appeal and therefore, he ought to have taken steps to file an appeal in time.

4. On a careful consideration, I notice that the Apex Court's judgment in the case of N. Balakrishna v. M. Krishnamurthy cited supra by the learned Counsel is clearly distinguishable. In that case, the Apex Court after due consideration of the reasons given by the appellant has categorically held that the delay was not on account of latches of the appellant. The latches were committed by the advocate and on that ground the delay was condoned. The Apex Court and the Tribunal in large number of judgments cited by the learned JDR have not condoned the delay, where latches are found on part of the appellant. The appellant should give sufficient cause for condoning the delay however in this case no such cause has been shown at all -by the appellant. The appellant instead of filing an appeal before the Tribunal had sent a letter dated 9.8.2004 to the Secretary, Ministry of Finance. A covering letter to the impugned order from the Commissioner (A) normally instructs the parties to file an appeal before the Tribunal. Therefore, it cannot be said that the appellant was not aware of the procedure of fling the appeal. The appellant had engaged advocate before both the authorities and the advocates should have properly instructed the appellant in the matter. The plea of ignorance of law cannot be entertained. There is no merit in this COD application and the same is rejected. As a result, the stay and appeal are also rejected.

(Pronounced and dictated in open Court)