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M/s.Sri Bhavani Castings Ltd., Ramanayya Peta, Kakinada Represented by its Managing Director v/s The Commissioner of Central Excise, Commissionerate-II

    CENTRAL EXCISE APPEAL No.81 of 2011

    Decided On, 07 April 2011

    At, High Court of Andhra Pradesh

    By, THE HONOURABLE MR. JUSTICE V.V.S. RAO & THE HONOURABLE MR. JUSTICE RAMESH RANGANATHAN

    For the Appellant: G. Pedda Babu, Advocate. For the Respondents: -----



Judgment Text

V.V.S. Rao, J.The appellant is aggrieved by the order dated 08.1.2010 in Final Order dated 21.12.2009 of the Customs, Excise and Service Tax Appellate Tribunal, South Zone, Bangalore (CESTAT). By impugned order the learned CESTAT declined to condone the delay of 85 days in filing appeal under Section 35B of the Central Excise Act, 1944 (the Act).

The appellant filed an appeal against the Order-in-Appeal dated 21.1.2009 passed by the Commissioner of Central Excise & Customs (Appeals) questioning the adjudication with regard to wrongful availment of input tax credit on freight outward from January, 2007 to October, 2007. There was a delay of 85 days. Therefore, the petitioner filed an application being ST/Misc./62/2010 to condone the delay of 85 days. In support of the application, the appellant alleged that the concerned official dealing with the files left the service; the matter related to old period; and the appellant could not locate the files and other material for filing appeal in time. The learned CESTAT considered this aspect and, while opining that they did not find any justifiable reason, rejected the application for condonation of the delay.

The learned Counsel for the appellant submits that during the pendency of the application for condonation of the delay the appellant sought time and filed an affidavit of concerned officials in support of the petition averment, but the same was not considered by the CESTAT. According to him, non-consideration of the material relevant for adjudicating the lis itself give rise to a question of law for the purpose of Section 35G of the Act.

We have given our anxious consideration and are afraid we cannot accept the plea of the learned Counsel. It is now well settled that, when an appellate/revisional authority rejects an application for condonation of delay, the Court sitting in appeal or revision against such an order has to independently consider the application for condonation of delay. Applying this test, on perusal of the affidavit accompanying the application filed before the CESTAT, we are convinced that the delay sought to be condoned is very vague. The basic averments, as to when the order of the Commissioner (Appeals) was received; when the concerned official left the appellant; when the appellant decided to file appeal; and when they are able to retrieve the records etc., are not even mentioned in the affidavit. A very bald allegation is made that the concerned official left the appellant and relevant records could not be placed. In our con

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sidered opinion, it cannot be a sufficient ground for condonation of delay, and in that view of the matter the order of the CESTAT is unexceptionable and does not involve any substantial question of law. The central excise appeal is, therefore, dismissed in limine. No costs.
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