Judgment:
1. This appeal arises from Order-in-Appeal No. 94/99, dated 10-12-99 by which the Commissioner (Appeals) has dismissed the appeal at the threshold level on the ground of time bar inasmuch as that the appeal had been filed beyond the statutory period of 3 months and the delay was 87 days. However the Commissioner (Appeals) had powers to condone the delay beyond 3 months and up to a period of 90 days. The reason given by the appellant was that the Director has fallen seriously ill and had been admitted in the hospital. The medical certificate had been produced to show his illness due to viral hepatitis attack and peptic ulcer and his being unconscious and being bed ridden for a long period.
The Commissioner has noted these facts but has not accepted the explanation solely on the ground that the director could have instructed some other person of the company to file the appeal and since he has not done so there is no diligence in the matter and he was not prepared to condone the delay.
2. Ld. Counsel submits that the director was being bed ridden and the director was whole and sole of the company and he could not authorize any other person to attend to the matter. He has relied on large number of judgments to support his plea and to show that the rulings clearly apply to the facts. In all these cases the Bench has condoned the delay which has been shown that the concerned person had fallen sick and the appeal could not be filed in time.
3. Ld. DR opposes the prayer and submits that the Commissioner (Appeals) is not satisfied with the grounds given by the appellants. It is a matter of routine business and the company is functioning despite the director being sick. Therefore the Commissioner (Appeals) rejecting the appeal at the threshold level is justified and this negligence should not be interfered. The appeal is required to be dismissed as the negligence is patent on record.
4. On a careful consideration I notice that the Apex Court has laid down liberal approach for condoning the delay in the case of Collector, Land Acquisition Anantnag and Anr. v. MST Katiji and Ors. as reported in 1987 (28) E.L.T. 185 (S.C.). The Apex Court has laid down that no person could get benefit by filing the appeal belatedly and the meritorious matter should not be thrown out at the threshold stage. In the case of Sairam Engineering Works v. CCE, Bombay as reported in 1997 (91) E.L.T. 608 the Tribunal condoned the delay of 79 days in filing the appeal on the basis of medical certificate showing sickness of the appellant's wife. Likewise the delay of 47 days were condoned in the case of Sree Laxmi Steel & Re-Rolling Mills v. CCE, Hyderabad as reported in 2001 (138) E.L.T. 476 on the similar ground of sickness and hospitalization. This Bench in the case of Essenjay Marketing Pvt. Ltd. v. CC, Bangalore as reported in 1995 (78) E.L.T. 774 condoned the delay of 41 days on similar ground that the Director of the Company being confined to bed and his inability to give instructions to other persons to file the appeal. In view of large number of judgments accepting the reason of sickness as a ground for condoning the delay I am satisfied that the appellant had sufficient ground seeking for condonation of the delay. The Commissioner (Appeals) ought to have condoned the delay and heard the matter on merits. In view of the Bench accepting the grounds given by the appellant the impugned order is set aside and the matter remanded to Commissioner (Appeals) to decide the case on merits. Thus the appeal is allowed by remand.