Full Judgment
2. Shri M. Chandrasekharan, learned Senior Advocate, submitted that the Revenue has preferred the Appeal against Order-in-Appeal No. 764- 855/C.E./CHD/2000, dated 19-4-2000 after a delay of 1068 days; that the impugned order has been received on 1-5-2000 whereas the Appeal has been filed on 4-7-2003; that initially the impugned Order was reviewed by the Commissioner and the decision was taken to accept the impugned Order on 21-7-2000 inadvertently under the impression that the period involved in all the cases was after 16-3-1995; that when Vigilance proceedings were started regarding adjudication of show cause notice dated 31-1-1997 which was adjudicated by the Assistant Commissioner, instead of Commissioner, it was observed that the Order has been wrongly accepted; that in view of these facts, the delay has occurred unintentionally which may be condoned; that the Revenue has also filed an Affidavit by the Commissioner, Central Excise explaining the date-wise action taken in the matter of filing the Appeal. Reliance has also been placed on the decision in the case of State of Haryana v.Chandra Mani [2002 (143) E.L.T. 249 (S.C.) = (1998) 3 SCC 132] wherein it has been held that "certain amount of latitude is not impermissible.
If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers is public interest. The expression sufficient cause should, therefore, be considered with pragmatism in justice oriented approach rather than technical definition of sufficient cause for explaining everyday's delay." 3. Opposing the prayer, Shri K.K. Anand, learned Advocate, submitted that the Commissioner had accepted the impugned Order after taking into accounts all the factors; that thus the successor Commissioner can not review the decision of his predecessor and as such the present Appeal itself is not maintainable; that the Affidavit now submitted by Revenue has completely omitted main and vital grounds made out in Para 3 of the Condonation of Delay Application regarding acceptance of the impugned Order inadvertently; that the said ground has not been at all sworn in the Affidavit to be correct; that the acceptance of the impugned Order under inadvertence and misimpression of period involved i.e. before 16-3-1995 and wrongly accepted by the then Commissioner has not been sworn at all in the Affidavit now submitted; that thus the entire basis for filing of application for condonation of Delay has not at all been supported in the affidavit. He also submitted that the Department was not under misconception as the Appeal against the Commissioner's Adjudication Order was pending in the Tribunal.
4. We have considered the submissions of both the sides. The change of opinion by the Department about filing of Appeal cannot be a sufficient ground for condoning the delay of more than 1000 days. The learned Advocate for the Respondent has rightly emphasised that the Affidavit filed by the Revenue has not at all supported the main plea in the Application for condonation of delay that the then Commissioner had accepted the impugned Order inadvertently under the impression that the period involved in all the cases was after 16-3-1995. No material has been brought on record in support of this averment. We also observe that the show cause notice dated 31-1-1997 was also adjudicated by the Commissioner and Appeal against the same had been allowed by the Tribunal and an Appeal was filed before the Hon'ble Supreme Court. Thus the Revenue has not succeeded in showing the sufficient cause for not presenting the Appeal within the period specified in Section 35B of the Central Excise Act. The ratio of the decision in the case of Chandra Mani is not applicable in view of the abnormal delay of more than 1000 days in filing the Appeal which has not been sufficiently explained.
We, therefore, reject the Application for condonation of delay. The Appeal is also consequently dismissed.