Judgment:
Order
Per Justice Ajit Bharihoke (Oral):
1. This appeal is directed against the order in appeal No. 38/RPR-I/2012 dated 5.3.2012 whereby the Commissioner (Appeals) rejected the plea of the appellant for condoning delay of 29 days for filing of appeal and dismissed the appeal.
2. Along with the appeal, the appellant has moved an application under Section 35 of the Central Excise Act, 1944 seeking waiver of condition of pre-deposit of duty demand , interest and penalty.
3. Matter was listed today for argument on stay application. Since a small issue of limitation is involved we are of the view that appeal itself can be disposed of. Accordingly, with the consent of the parties, the condition of pre-deposit is waived and we have heard the arguments on appeal.
4. Undisputedly, the instant appeal has been filed after expiry of the period of limitation of 60 days from the date of receipt of the order in original. Proviso to Section 35(1) of the Central Excise Act, 1944 confers power upon Commissioner to further extend the period for filing of appeal after expiry of the original period of limitation of 60 days, provided the appellant gives a reasonable explanation for the delay caused in filing of appeal.
5. In the instant case the appellant in the application for condonation of delay explained that his Accountant who was dealing with the matter met with an accident as a result of which he was confined to bed from 6.4.2011 to 5.7.2011 and because of this reason the appeal could not be filed in time. Commissioner (Appeals) was not satisfied with the explanation. Accordingly, he refused to condone the delay with the following observation:
“.. Also I note that the appeal paper bears the signature of Shri Majoj Kumar Aggarwal, Authorised Representative of the Appellant and not signed and filed by Shri J. Sahoo, Accountant who met with an accident and confined to bed. In this connection, I find that, the Accountant does accounts work only and preparation of Appeal papers are normally done by the consultant of the Appellant.”
6. Shri Kartik Kurmy, Ld. Advocate for the appellant has pleaded that the impugned order rejecting the application for condonation of delay is illegal and arbitrary. Ld. Commissioner (Appeals) has failed to appreciate that Shri J. Sahoo, Accountant of the company was responsible for taking policy decision on the issue connected with the central excise matter. He was the person responsible for dealing with the counsel for the appellant. Learned Commissioner (Appeals) has failed to appreciate that because of accident Shri Sahoo was confined to bed from 6.4.11 to 5.7.11, as such, he could not meet and brief the counsel and immediately after joining the duty, he approached the counsel and the appeal was prepared and filed before Commissioner (Appeals). It is further contended that the present appeal is within permissible limit of 30 days after expiry of 60 days.
7. Shri Amresh Jain, learned A.R. for the Department on the contrary has argued in support of the impugned order.
8. We have considered the rival contentions and perused the record. In our view the explanation given by the appellant for delay in filing of the appeal is satisfactory and Commissioner (Appeals) should have accepted the same to condone the delay, more so because of the fact the medical certificate of Shri J. Sahoo, Accountant was also produced.
9. It is well settled that while dealing with the application for condonation of delay, the Courts/Tribunal should take liberal view and ordinarily the doors of justice should not be shut to a party on technical ground of limitation. Thus taking into account the overall facts of this case we are unable to sustain the order of Commissioner (Appeals) whereby he dismissed the appeal on the ground of limitation. We accordingly, condone the delay of 29 days for filing of appeal and set aside the impugned order. The matter is remanded back to the Commissioner (Appeals) that he would decide the appeal after giving an opportunity of being heard to the appellant.