- (1.) HEARD Mr. H. Rahman, learned Assistant Solicitor General of India (for short, 'asgi') appearing on behalf of the petitioner/commissioner of Customs and Central Excise, Shillong as well as Dr. A. K. Saraf, learned counsel assisted by Ms. M. L. Gope, learned counsel for the respondent.
(2.) THIS is an application filed under Section 5 of the Limitation Act, 1963 (for short, 'the Act') seeking condonation of inordinate delay of 565 days in preferring the related Central Excise Reference/appeal.
(3.) IT would be pertinent to quote herein the entire petition filed by the Union of India on 13. 10. 2007 for seeking condonation of delay in question : "district: Kamrup the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh)[civil Appellate Jurisdiction] misc. Case No. 3144 of 2007 in Central Excise Ref No. of 2007 to the Hon'ble Shri Jasti Chelameswar, B. Sc. , B. L. , the Chief Justice of the Hon'ble Gauhati High Court and His Lordship's other Companion Justices of the said Hon'ble Court. In the matter of : an application under Section 5 of the Limitation Act, 1963 praying for condonation of delay in preferring the appeal under Section 35-G of the Central Excise Act, 1944 against the impugned Judgment dated 27. 5. 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zone Bench, Kolkata in Appeal E-757, 769-776/2002 arising out of order in original 28/2002 dated 25. 7. 2002 passed by the Commissioner of Customs and Centrai Excise, Shillong. The total delay of 565 days. And in the matter of : commissioner of Customs and Central Excise, Shillong. . . Petitioner/appellant versus assam Asbestos Limited, Guwahati. . . . Opp. Party/respondent the humble petition of the petitioner above named-Most Respectfully Sheweth : 1. That, the petitioner/appellant have preferred an appeal before this Hon'ble Court under Section 35-G of the Central Excise Act, 1944 against the Judgment and Order dated 27. 5. 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zone Bench, Kolkata in Appeal E-757, 769-776/2002, file this appeal before this Hon'ble Court. The said appeal has been registered and numbered as Writ Petition (C) No. /2007. However, there has been some delay in preferring the writ petition. The present application has been filed citing the reasons for the delay and praying for condonation of the delay in preferring the appeal. 2. That the brief facts of the case are that M/s. Assam Asbestos Ltd. , Guwahati is an assessee under the Central Excise Act engaged in the manufacture of Asbestos Cement products (Asbestos Plain Sheet/corrugated Sheet) and Galvanized Corrugated sheets classified under Central Excise Tariff Heading 6804 and 7210 respectively, they were also availing exemption under Notification No. 4/97-CE dated 1. 3. 1997 and Notification No. 5/98-CE, dated 2. 6. 1998 for their Asbestos Cement product. After an investigation by the Department, it was found that the assessee fraudently availed the exemption on Asbestos Cement product in as much as they did not use the quantum (percentage) of Fly Ash specified in the exemption notification to be eligible. The investigation also revealed that they restored to clandestine clearances of Galvanised Corrugated Sheets and thus evaded Central Excise Duty. 3. That these findings of the investigation were based on recovery of private documents and chits maintained by the responsible persons of the factory, which indicated clearly the actual use of fly ash and clearances of Galvanized Sheets. After making a detail investigation, a Show Cause Notice was issued to the assessee proposing demand of duty of Rs. 70,80,468/ -. The Commissioner, Central Excise, Shillong vide order-in-original No. 28/2002 confirmed the demand relying upon the private documents, slips, chits and other findings. 4. That the assessee filed appeal against the order-in-original before the Customs, excise and Service Tax Appellate Tribunal. The Tribunal vide its final order No. A-412-420/kol/2005 in Appeal E-757, 769-776/2002 dated 27. 5. 2005 which was forwarded by the Assistant Registrar, CESTAT, Kolkata vide its letter dated 16. 11. 2006, set aside the duty demand confirmed by the Commissioner for alleged fraudulent availment of Notification No. 4/97-CE and 5/98-CE for Asbestos Cement Product and remanded the case for re determination of demand for alleged clandestine clearances of Galvanized Corrugated Sheets. 5. That while setting aside the demand, the CESTAT held that the Commissioner had placed reliance on certain hand written slips of papers maintained by the "semi literate" workers for their own reference in preference to the statements of the Sr. Manager and statutory records. This clearly proved that the Commissioner had a present mind to confirm the charges against the noticee. The chits clearly exhibits that the word actual' was being used by the workers for the quantity in fact of Bongaigaon Fly Ash and not the entire lot. The CESTAT therefore held that the chits/slips cannot be relied. 6. That the other evidence relied by the Commissioner for confirming charges was that during the material period the assessee did not buy fly ash from BTPS were not traceable as summons issued to them returned undelivered. The CESTAT observed that no other suppliers of BTPS fly ash and to ascertain the existence of the firms. So the conclusion drawn by the Commissioner that no fly ash of BTPS was used is not valid one. 7. That the CESTAT here held that the quantity of final product could not emerge from the quantity of fly ash mentioned in the chits. The CESTAT further held that Commissioner had wrongly based his finding on moisture content of the product in total disregard of the Board's Circular which stipulated that percentage use of fly ash is to be determined basing on the dry weight of the final product and percentage given in moisture content had no relevancy. The Commissioner also ignored the use of fly ash other than BTPS fly ash. The CESTAT also observed that no further efforts were made by the investigation officers to trace out the two suppliers of BTPS fly ash and to ascertain the existence of the firms. So the conclusion drawn by the Commissioner that no fly ash of BTPS was used is not valid one. The CESTAT, with the above findings set aside the demand confirmed by the Commissioner for Asbestos Cement Product. 8. That the order dated 27. 5. 2005 passed by the learned CESTAT in Appeal E-757, 769-776/2002, is not legally sustainable and has been passed without proper appreciation of the materials available on record. Being aggrieved, the present petitioner/appellant has preferred writ petition before this Hon'ble Court under Section 35-E (2) of the Central Excise Act, 1944, against the impugned order dated 27. 5. 2005. 9. That the said writ petition ought to have been preferred within a period of 180 days but in the instant case there has been some delay in filing the appeal. The certified copy of the impugned judgment was received from the CESTAT, Kolkata, only in December, 2006. The matter was examined by the department. Thereafter the same was forwarded to the departmental higher up where it was also scrutinized. In the meantime legal opinion was obtained. After obtaining approval from the concerned Ministry, the required papers were forwarded to the learned Assistant Solicitor General of India, Gauhati High Court for filing the appeal against the impugned judgment and order. The learned Assistant Solicitor General of India took some time to prepare the appeal and it was finally made ready and after being duly vetted, the same is being filed before this Hon'ble Court on. 10. That all this caused a delay of 565 days in preferring the writ petition. There is no negligence on the part of the petitioner in not preferring the writ petition in time. The petitioner believes that the Hon'ble High Court will allow the writ petition in favour of the petitioner. The basis of such belief is presence of good grounds in the present appeal. Hence, the petitioner prays that the delay may be condoned, which has been sufficiently explained herein above and to admit the writ petition. 11. That this application is filed bona fide and in the interest of justice. In the premises aforesaid, it is, therefore, prayed that your Lordships may be graciously pleased to condone the delay of 565 days in preferring the writ petition against the judgment dated 27. 5. 2005 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zone Bench, Kolkata in Appeal E-757, 769-776/2002 and to admit the writ petition for hearing and/or be pleased to pass any such further or other order/orders as Your Lordships may deem fit and proper. And for this act of kindness, your humble petitioner as in duty bound, shall ever pray. ";