Vibhal Steel (Pvt.) Ltd. Vs. Collector of C. Ex. - Court Judgment

Excerpt:

.....in terms of section 35 of the central excises and salt act, discretionary power vests with the appellate authority even to condone delay in filing the appeal for further period of three months. assuming that there was a delay of one day, in the interest of justice, he should have condoned it. in the facts and circumstances, the delay if any in filing the appeal has been condoned and the matter has not been decided on merit. the same is remanded to the concerned commissioner (appeals) to decide the issue on merit after providing an opportunity to the appellant. thus, this appeal is allowed by way of remand. in this context it was brought to my notice by shri s.s. aggarwal that goods which have been confiscated were detained and the department has issued a notice for auction of such goods. i make it clear that if the goods have not been auctioned, the department is directed not to auction the same during the pendency of the appeal before the commissioner (appeals). ordered accordingly. copy of this order may be given dasti.

Judgment:

1. After hearing for sometime with reference to the stay application filed by the party, I felt that the main matter itself can be disposed of since the issue is on a narrow compass. Accordingly, the amount required to be deposited for the purpose of hearing the appeal is dispensed with and the main matter was taken up for regular hearing with the consent of both the sides.

2. Heard Shri J.S. Aggarwal, learned Advocate, for the appellants and Shri Sanjeev Srivastava, learned Advocate, for the Revenue.

3. The Collector (Appeals) has dismissed the appeal as barred by time without going into the merit of the case. It was brought to my notice that order passed by the Assistant Commissioner was received by the assessee on 16-1-1997 and the appeal was filed in the office to the Commissioner (Appeals) on 17-4-1997. According to Shri J.S. Aggarwal, if the date on which the order was communicated is excluded there was no delay of even one day in filing the appeal. According to the department, there was a delay of one day in filing the appeal even excluding the date on which the order was communicated. Shri Srivastava also submits that in spite of the several opportunities being given to the party to explain the delay in filing the appeal but the opportunity has not been availed by the party as can be seen from the order.

4. In terms of Section 35 of the Central Excises and Salt Act, discretionary power vests with the Appellate Authority even to condone delay in filing the appeal for further period of three months. Assuming that there was a delay of one day, in the interest of justice, he should have condoned it. In the facts and circumstances, the delay if any in filing the appeal has been condoned and the matter has not been decided on merit. The same is remanded to the concerned Commissioner (Appeals) to decide the issue on merit after providing an opportunity to the appellant. Thus, this appeal is allowed by way of remand. In this context it was brought to my notice by Shri S.S. Aggarwal that goods which have been confiscated were detained and the department has issued a notice for auction of such goods. I make it clear that if the goods have not been auctioned, the department is directed not to auction the same during the pendency of the appeal before the Commissioner (Appeals). Ordered accordingly. Copy of this order may be given DASTI.