Request for case law

   Prism Cement Ltd. vs Cce on 17/6/2003

JUDGMENT

   V.K. Agrawal, Member (T)

   1. This is an application by M/s Prism Cement Ltd., for condonation of delay
of 317 days in filing the appeal before the Tribunal.

   2. Shri A.N. Haksar, learned Sr. Advocate, submitted that the impugned Order-
in-Appeal dated 13.2.2002 immediately after receipt was sent to their corporate
office situated in Mumbai through its internal courier for seeking opinion of
the Legal Solicitors of the Applicant company; that subsequently during an
internal audit in the month of December 2002, it was realized that the opinion
being sought on the impugned order had not materialized; that on tracking, it
was found that the Appellant company's Solicitors had not received the order as
the internal courier, Mr. Mahendra Singh, while carrying the consignment
including the impugned order, had fallen ill and since then had remained on
leave till November 2002; that on querying the internal courier, he brought
forth the consignment carrying the impugned order; that it was only then that
the opinion of the Solicitors could be sought; that due to inadvertent delay
they could not file an appeal within the scheduled time period. He, further,
submitted that the issue involved in the present matter is the eligibility to
avail of Modvat Credit of duty paid in respect of HSD oil used in the
manufacture of cement; that the, position in law is now settled by the Supreme
Court in the case of CCE, Hyderabad v. Associated Cement Co. Ltd., 2003 (85) ECC
736 (SC) : 2003 (151) ELT 12 (SC); that thus the matter on merit is entirely in
their favour as the Order passed by the Lower authorities is patently erroneous
and illegal; that it would be highly unjust and prejudicial, if their rightful
claim is denied on the ground of delay which is neither wanton nor deliberate.
He, therefore, requested that the delay in filing the appeal may be condoned.

   3. Opposing the prayer Shri A.S. Bedi, learned SDR, submitted that the
reasons advanced by the Applicants for delay in filing the appeal before the
Tribunal are not sufficient to condone the delay as there is complete negligence
on their part in not filing the appeal within time; that on their own admission
it appears that they came to know about the non-receipt of the consignment by
their corporate office only when the internal audit was conducted. The learned
SDR, further, contended that even after coming to know about the non-filing of
the appeal in December 2002 the Applicant have taken 4 months for filing the
appeal and which has not been explained at all. He, therefore, submitted that
the delay does not deserve to be condoned.

   4. We have considered the submission of both the sides. As per Sub-section
(3) of Section 35B of the Central Excise Act, every appeal shall be filed within
3 months from the date on which the Order sought to be appealed against is
communicated to the aggrieved person filing the appeal. Sub-rule (5) empowers
the Appellate Tribunal to admit an appeal after expiry of the relevant period
referred to in Sub-section (3), if it is satisfied that there was sufficient
cause for not presenting it within the period. We agree with the submissions of
the learned SDR that the Applicants have not adduced sufficient cause for not
presenting the appeal within the time prescribed under Sub-section (3) of
Section 35B of the Central Excise Act. There is force in the contention of the
learned SDR that after the internal courier fell sick and proceeded on leave the
applicants should have inquired about the consignment which he was supposed to
deliver at the corporate office, particularly when the courier remained on leave
from February to November. We also observe that even after he returned from
leave it appears that no inquiries have been made from him about the consignment
as non-filing of appeal could be deducted only by the internal audit in the
month of December 2002 Further, even after finding out the fact of not filing
the appeal in December 2002 the applicants took their own time and filed the
appeal in Tribunal only in April 2003. This further delay has not been explained
at all by them except merely saying that, solicitor was consulted. Accordingly
the applicants have not adduced sufficient causes for condoning the delay in
filing the appeal. We, therefore, dismiss the application and consequently
appeal also stands dismissed.
 

Thank you very much for your instant response.

The case law requested by me pertains to a decision of Allahabad High court wherein the refund under Limitation Act can be made quasi judicial authorities like Asst Commissioner,Commissioner of Central Excise.

Prism Cement ltd Vs Union OF India 2003(161) ELT 93

I will be pleased if you provide the judgemnet copy

can you send me a relevant case law relating to purchases without form8E in kerala vat tax