Judgment:
Anoop V. Mohta, J.
1. Heard finally by consent of the parties.
2. This is a Letters Patent Appeal against order dated 12.06.2007 whereby, the order on petitioner's application for condonation of delay as was rejected by the Customs, Excise and Service Tax Appellate Tribunal, Mumbai, is maintained.
3. The appellant, who has filed the appeal against the impugned order dated 29.11.2005 passed by the learned Commissioner (Appeals), Customs & Central Excise, Nagpur to the extent that it has been held that the appellant is liable to pay Additional Excise Duty (Goods of Special Importance) as there was no exemption available to the respondent from payment of the said AED. The appeal was filed under Section 35(B) of the Central Excise Act, 1944 (For short 'Act'). The relevant clauses are as under:
35B Appeals to the Appellate Tribunal,-
(1) -----
(2) -----
(3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the [Commissioner of Central Excise}, or, as the case may be, the other party preferring the appeal.
(4) On receipt of notice an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forth-five days of the receipt of the notice, a memorandum of crossobjections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in Sub-section (3)
(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in Sub-section (3) or Sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
4. As there was delay of 65 days, an application for condonation of delay was also filed. The Tribunal, after considering the averments made, declined to condone the delay and as the application was rejected the appellant had preferred writ petition, which was also dismissed by the learned Single Judge.
5. The learned Counsel appearing for the respondents basically supported the order and also relied on the judgment of the Hon'ble Apex Court, in Singh Enterprises v. Commissioner of C. Ex. Jamshedpur : 2008(221)ELT163(SC) , where the delay of 20 months was not condoned and it is observed as under:
8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statue are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to Sub section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay upto 30 days after the expirty of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period.
6. The submission is, therefore, that considering the scheme and purpose of the Act and specially provisions of Section 35, which would be extended to other provisions of appeal like Section 35B in question. We are not inclined to accept this submission for the simple reason that when the Legislature has clear intention to give strict meaning or particular meaning to a particular provision as provided in Section 35, it cannot extended to Section 35G which has no such clause or provision. On the contrary as recorded, Clause (5) of Section 35B provides power to the appellate Tribunal to admit an appeal even after expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting within that period. Therefore, the facet of 'sufficient cause' of the Limitation Act applies. There is no such bar. The present section nowhere provides any such strict provision as provided in Section 35 of the Act. It is clear interpretation of that section, which cannot be extended to Section 35B of the Act.
7. So far as merit of the matter is concerned, the fact remains that the petitioner loses his right to contest the appeal and his case as the application for condonation of delay itself was dismissed as there was 65 days delay.
8. We are of the view that in the interest of justice and even otherwise it is desirable that the appellant/petitioner be given full opportunity to contest statutory appeal, which was dismissed on the ground of delay. The fact as recorded that on 21.12.2005 Mr. Rajesh Kalla, who was working as Manager and dealing with all the excise, customs cases of the Company, had left the Organisation. The new Officer Mr. Tahaliyani was appointed. The handing over process took some time. The case papers, as observed, got mixed up with the other case papers. It is not abnormal that because of the change of Officers, the new officer takes some time and takes decisions only after going through the record and especially after having knowledge of the records. In this case also, after Mr. Tahaliyani found the case papers including the impugned order and, thereafter, he prepared the appeal and filed the same. There was no intentional delay. Even otherwise, considering the fact that there is delay of 65 days and as case is made out, we see there is no reason that the said delay should not be condoned and opportunity should not be given to the petitioner.
9. In view of this, the present Letters Patent Appeal is allowed. The impugned order passed by the learned Single Judge is quashed and set aside including the order passed by the tribunal. The delay is condoned. The Tribunal to decide the appeal on merits accordingly.
No order as to costs.