Decided on July 31,1991



Jyoti Balasundaram, Member (J) - (1.) THIS is an application for condonation of delay of five months in preferring the appeal against the impugned order on the following grounds. The Revenue submits that the issue decided by the Collector of Central Excise (Appeals), Bombay was complicated and involving substantial legal implications. The Department had to ascertain the correct legal position by studying different authorities and consulting to the higher authorities. Subsequent to the filing of the application for condonation of delay, the Department also filed detailed reasons for the delay which are as follows: (a) The order of the lower appellate authority was received in the office of the applicants on 3.4.1984 and in the relevant section on 4.4.1984. (b) The order was first put up by the dealing officer on 19.4.1984. The order involved substantial legal implications regarding applicability of the provisions of the erstwhile Rule 11 of Central Excise Rules and, therefore, the case required to be referred to the Law Ministry and the CBEC, New Delhi. (c) The Law Ministry's advice was received on 26.5.1984. (d) The applicants then referred the matter to the Member (L and J) CBEC on 17.8.1984 and on 26.9.1984, the Board issued a telex instructing the applicants to file an appeal in a similar case pertaining to M/s. Organic Metallics. (e) The original case records had to be obtained from the Divisional Assistant Collector for filing the appeal and the appeal was filed on 1.12.1984.
(2.) AT the time of hearing the learned DR placed on record a communication dated 20.6.1991 from the Collector of Central Excise, Bombay -I to the SDR, CEGAT in which it was set out as follows: The order -in -appeal was put up for Collector's perusal/decision along with various instructions of the Board as regards the applicability of Rule 11 to non -excisable goods, and extracts of the General Law of Limitation on 21.6.1984, and a decision was taken to accept the impugned order -in -appeal by the Collector on 28.6.1984. A reference was then made by the Dnl. Asstt. Collector on 24.7.1984, to this office, enclosing an anonymous complaint that sanction of refund in this case would make it a CBI vigilance case since cases of other parties were pending in the High/Supreme Court. It was then decided to refer the matter to the Member (Legal and Justice) which was accordingly done on 17.8.1984. As regards the telex dated 26.9.1984, in the case of M/s. Organic Metallics, the same was put up for perusal/orders on 27.9.1984 and orders of the Collector were taken on 29.9.1984 to file an appeal in the said case of M/s. Organic Metallics. The case records pertaining to the subject referred appeal which had been returned to the Dvl. Assistant Collector in view of the earlier decision to accept the order -in -appeal, had to be again obtained from the Dnl. Assistant Collector. The same were accordingly obtained on 15.10.1984. The draft appeal and application for condonation of delay were then prepared and put up for Collector's approval which was obtained on 27.11.1984. The appeal was then typed and finally filed on 1.12.1984.
(3.) IN view of the above submissions, Shri Nair submits that it is a fit case for condonation of delay especially as the Department has a strong prima facie case on merits. Shri V. Lakshmikumaran opposes the application for condonation and contends that the reasons given in support of the application for condonation of delay are not sufficient so as to warrant the exercise of discretion on the part of the Tribunal.;

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