M/S. Kuber Silk Mills Pvt. Ltd. Vs. Cce, Hyderabad - Court Judgment

Excerpt:

.....stay and appeal are taken up for disposal as the issue lies in a short compass. the commissioner has dismissed the appeal under section 35 of the act on the ground that there was a delay of 5 days. the commissioner has power to condone 30 days of delay. sufficient reasons were given by the appellants seeking condonation of delay of 5 days, but the same was not accepted. further, the commissioner has not granted an opportunity of hearing also. therefore, on both counts, the order is bad in law. the apex court in the case of collector of land acquisition, anantinag & another vs. mst katiji & ors. [1987 (28) elt 185/sc] have clearly laid down the salient features for condoning the delay and have passed strictures against the commissioner for not having condoned the delay of marginal days. the said strictures of the supreme court clearly applies to this case also as marginal delay of 5 days ought to have been condoned in the light of the law laid down by the supreme court. it is hoped that the commissioner will not commit such mistakes but would follow the law laid down by the apex court and condone the marginal delays, as apex court has held clearly that appellants will.....

Judgment:

1. The stay and appeal are taken up for disposal as the issue lies in a short compass. The Commissioner has dismissed the appeal under Section 35 of the Act on the ground that there was a delay of 5 days. The Commissioner has power to condone 30 days of delay. Sufficient reasons were given by the appellants seeking condonation of delay of 5 days, but the same was not accepted. Further, the Commissioner has not granted an opportunity of hearing also. Therefore, on both counts, the order is bad in law. The Apex Court in the case of Collector of Land Acquisition, Anantinag & Another Vs. MST Katiji & Ors. [1987 (28) ELT 185/SC] have clearly laid down the salient features for condoning the delay and have passed strictures against the Commissioner for not having condoned the delay of marginal days. The said strictures of the Supreme Court clearly applies to this case also as marginal delay of 5 days ought to have been condoned in the light of the law laid down by the Supreme Court. It is hoped that the Commissioner will not commit such mistakes but would follow the law laid down by the Apex Court and condone the marginal delays, as apex court has held clearly that appellants will not gain anything by filing belated appeals with marginal delays. In that view of the matter, while granting waiver of pre deposit and staying its recover, the appeal is taken up and the matter remanded to Commissioner (Appeals) by condoning the delay in filing the appeal before him. The Commissioner is directed to take up the matter on merits and dispose of the matter after granting an opportunity of hearing to the appellants. Ordered accordingly.