M/S. Sundaram Fasteners Ltd Vs. Commissioner of Central Excise, - Court Judgment

Excerpt:
1. this appeal arises from order in appeal no.18/99(t) (mj) dt.7.6.99 passed by the commissioner (appeals), trichy by which the commissioner (appeals) has dismissed the appeal on the ground of delay by one month and fifteen days. the ld. counsel for the assessee appeared before the commissioner (appeals) and had pleaded for delay was unintentional. no other ground has been disclosed. therefore the commissioner (appeals) took the view that the appellants are a company incorporated under the companies act and are not a sole proprietorship concern or a one man out fit; therefore the appellants ought to have exercised more care in filing the appeal in time; that any prudent person placed in similar circumstances would have exercised sufficient care and taken full steps to ensure that the appeal was filed in time. hence he held that the appellants had not shown any diligence in filing the appeal in time and on that reasoning held it to be not a fit case for condonation of delay and dismissed the application for condonation of delay and appeal, following the ratio of the apex court judgment rendered in the case of ramagowda and others vs. special land acquisition officer, bangalore 1988 (2) scc 142.2. in the grounds of appeal also the appellants have stated the same cause for belated filing of the appeal except for this reason no other grounds were made to explain the delay.2. appearing on behalf of the appellants, the shri v. srinivasan, manager (finance) contends that the cause for delay was that the concerned person who was dealing with the matter had left the organisation without handing over the papers, paper books, etc. of the excise matters. it was found by his successor who brought to the notice of the corporate office. it took some time to file the appeal.therefore, he pleads for condonation of delay in filing the appeal. the penalty imposed by the original authority has not rendered any finding while imposing penalty but has merely stated that the penalty is imposed for procedural lapses. hence he states that they have a good case on merits.3. appearing for the revenue, the ld. dr defends the impugned order and submits that merit of the case cannot be gone into at this stage. he points out that no reasons were given and no application for cod had been filed before the commissioner (appeals) except the explanation given by the counsel and sought for condonation as there was no intentional delay. he submits that the appellants are required to give sufficient reasons and not merely state the delay was unintentional.therefore, he submits that the impugned order is correct in the light of the judgement referred to above.4. i have carefully considered the submissions made by both side. i notice that the submissions made by the ld. dr has force. the appellants did not file any application for consideration for condonation of delay before the commissioner. the manager (finance) merely submitted that it was unintentional delay of 45 days without declaring the reasons even in the appeal memorandum. there is no mention of cause of delay in filing the appeal. the manager now has tried to explain that it was due to the lapse of their clerk. but there is no affidavit, by the said clerk or subsequent clerk to state the delay in filing the case. the appellants have not earlier pointed out before the commissioner about this reason. it is difficult to accept the explanation now given. i cannot go into the merit of the case as the explanation submitted is not sufficient for condoning the delay before commissioner (appeals). the commissioner is justified for dismissing the appeal on insufficient in filing the appeal. it is also supported by another judgment of the supreme court rendered in the case uoi vs. tata yodogawa ltd. reported in 1988 (38) elt 739 (sc). in that view of the matter there is no merit in the appeal and the same is rejected.

Judgment:
1. This appeal arises from order in appeal No.18/99(T) (MJ) dt.7.6.99 passed by the commissioner (Appeals), Trichy by which the Commissioner (Appeals) has dismissed the appeal on the ground of delay by one month and fifteen days. The Ld. Counsel for the assessee appeared before the Commissioner (Appeals) and had pleaded for delay was unintentional. No other ground has been disclosed. Therefore the Commissioner (Appeals) took the view that the appellants are a company incorporated under the Companies Act and are not a sole proprietorship concern or a one man out fit; therefore the appellants ought to have exercised more care in filing the appeal in time; that any prudent person placed in similar circumstances would have exercised sufficient care and taken full steps to ensure that the appeal was filed in time. Hence he held that the appellants had not shown any diligence in filing the appeal in time and on that reasoning held it to be not a fit case for condonation of delay and dismissed the application for condonation of delay and appeal, following the ratio of the Apex Court judgment rendered in the case of Ramagowda and Others vs. Special Land Acquisition Officer, Bangalore 1988 (2) SCC 142.

2. In the grounds of appeal also the appellants have stated the same cause for belated filing of the appeal except for this reason no other grounds were made to explain the delay.

2. Appearing on behalf of the appellants, the Shri V. Srinivasan, Manager (Finance) contends that the cause for delay was that the concerned person who was dealing with the matter had left the organisation without handing over the papers, paper books, etc. of the excise matters. It was found by his successor who brought to the notice of the corporate office. It took some time to file the appeal.

Therefore, he pleads for condonation of delay in filing the appeal. The penalty imposed by the original authority has not rendered any finding while imposing penalty but has merely stated that the penalty is imposed for procedural lapses. Hence he states that they have a good case on merits.

3. Appearing for the Revenue, the Ld. DR defends the impugned order and submits that merit of the case cannot be gone into at this stage. He points out that no reasons were given and no application for COD had been filed before the Commissioner (Appeals) except the explanation given by the Counsel and sought for condonation as there was no intentional delay. He submits that the appellants are required to give sufficient reasons and not merely state the delay was unintentional.

Therefore, he submits that the impugned order is correct in the light of the judgement referred to above.

4. I have carefully considered the submissions made by both side. I notice that the submissions made by the Ld. DR has force. The appellants did not file any application for consideration for condonation of delay before the Commissioner. The Manager (Finance) merely submitted that it was unintentional delay of 45 days without declaring the reasons even in the appeal memorandum. There is no mention of cause of delay in filing the appeal. The Manager now has tried to explain that it was due to the lapse of their clerk. But there is no affidavit, by the said clerk or subsequent clerk to state the delay in filing the case. The appellants have not earlier pointed out before the Commissioner about this reason. It is difficult to accept the explanation now given. I cannot go into the merit of the case as the explanation submitted is not sufficient for condoning the delay before Commissioner (Appeals). The Commissioner is justified for dismissing the appeal on insufficient in filing the appeal. It is also supported by another judgment of the Supreme Court rendered in the case UOI vs. Tata Yodogawa Ltd. reported in 1988 (38) ELT 739 (SC). In that view of the matter there is no merit in the appeal and the same is rejected.