ORDER
Harish Chander, Member (J)
1. M/s. Haryana Insulated Wires (P) Ltd., Gurgaon, have filed an appeal being aggrieved from the order passed by the Ad- ditional Collector of Central Excise, Ne Delhi. The said appeal was presented in the Registry on 4th April, 1989. In column No. 3 of the memo of appeal, the date of com- munication has been mentioned as 3rd November, 1988. Thereafter, the applicants had presented an application for condonation of delay duly supported with an affidavit and medical certificate in original. Thereafter, another affidavit dated 7th July, 1989 sworn before an Oath Commissioner was also filed. The date of communication in column No. 3 of the appeal memo has been mentioned as 3rd November, 1988. Thus the appeal is hit by limitation and there is a delay of 59 days.
2. Shri J.S. Agarwal, the learned advocate, has reiterated the contentions made in the application for condonation of delay and the subsequent affidavit. Shri Agarwal, the learned advocate, stated that the appellants’ Director Shri Sunil Mangla had fallen sick in the last week of January, 1989 and had ineffective hebtitus (Jaundice) and he was sick till the end of March, 1989. As soon as he recovered from the sickness, he filed the appeal. The appeal was presented in the Registry on 4th April, 1989. Shri Agarwal, the learned advocate, stated that the applicant was prevented by sufficient cause in the late filing of the appeal. The delay in the filing of the appeal may be condoned.
3. Shri D.M. Borade, the learned JDR who has appeared on behalf of the respondent, has opposed the condonation of delay and has stated that the appellant could have filed the appeal well before the expiry of time and sickness is not a sufficient cause. He has pleaded for the dismissal of the application for condonation of delay.
4. In reply Shri J.S. Agarwal, the learned advocate has relied on a judgment of the Allahabad High Court in the case of Ram Singh Verma v. Income Tax Appellate Tribunal, Allahabad and Ors. reported in 1989 (23) ECR 53 (Allahabad). Shri Agarwal pleaded that the Hon’ble High Court had held that the Tribunal should have considered the plea of the appellant as to sickness and should have condoned the delay.
5. We have heard both the sides and have gone through the facts and cir- cumstances of the case. The facts are not disputed. The order-in-original was received on 3rd November, 1988 and the appeal must have been filed on or before 3rd February, 1989, whereas the appeal was presented in the Registry on 4th April, 1989. There is a delay of 59 days. In terms of provisions of Sub-section (3) of Section 35B of the Central Excises and Salt Act, 1944, an appeal has to be filed within three months from the date of the receipt of the order. The appellant has duly supported his plea with an affidavit duly sworn before the Notary Public. The affidavit dated 7-7-89 is reproduced below:
“Affidavit of Shri Sunil Mangla son of Dr. R.C. Mangla aged 35 years resident of B-9, Kalindi Colony, Ne Delhi.
I, the above named deponent do hereby solemnly affirm and state as under :-
1. That the Appeal against the said order in original dated 28-10-1988 before the Hon’ble Tribunal was required to be filed on or before 3-2-1989.
2. That the appeal was acutally filed on 4-4-1989 resulting in a delay of 59 days in filing the said appeal.
3. That the said delay has occured as the depondent suffered an acute attack of Jaundice in the last week of Jan. 1989 and remained confined to bed till the end of March, 1989 and could only attend to his office by 1st Week of April, 1989, as per advice received from the Doctors attending upon the depondent.
4. That the said order-in-original was received on 3-11-1988 but as the depondent was getting strokes of fever of and on repeatedly and was feeling week due to liver infection he could not take action and ultimately he suffered the stroke of jaundice resulting in confining him to bed.
5. That under the circumstances the delay occurred is out of control of the deponent which, The Tribunal may kindly condone.
Sd/- Sunil Mangla
DEPONENT
VERIFICATION:
I, the abovenamed deponent do hereby solemnly affirm and declare that whatever has been stated in paras 1 to 5 is correct to the best of my knowledge and belief and nothing has been concealed therefrom.
Place : New Delhi, Sd/- Sunil Mangla Dated: 7-7-1989 DEPONENT"
A simple perusal of the affidavit shows that the applicant was sick. He recovered in the last week of March, 1989 and filed the appeal on 4th April, 1989. It is a settled la that the appellant is not expected to explain the delay till the last date of limitation. The Hon’ble Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. reported in AIR 1962 Supreme Court 361 has held that the appellant is not expected to explain his conduct in the late filing of the appeal till the last date of limitation and after expiry of the limitation the appellant has to explain each and every day’s delay. In the matter before us, the appellant was sick. He has filed an affidavit which is already reproduced above. The revenue has not filed any counter-affidavit and has also not filed any evidence which leads us to the inference that the contentions made by the applicant in the applica- tion for condonation of delay are incorrect. The application is duly supported with a medical certificate from Dr.D.Sen Gupta, Senior Physician, Dr. R.M.L. Hospital, New Delhi. Accordingly, we are of the vie that the applicant was prevented by sufficient cause in the late filing of the appeal. The Hon’ble Calcutta High Court in the case of Karali Charan Sanna v.Apurba Krishna Bajpayi and Ors. reported in AIR 1931 Calcutta 298 had held that where the appeal was presented some days after expiry of limitation, only days of delay should be explained to make out sufficient cause. Antecedent inaction or negligence are not material. The Hon’ble Rangoon High Court in the case of S.M.Ally v. MaungSan Nyien reported in AIR 1936 Rangoon 183 had held that: “A mere plea of sickness in itself, unless the effect of sickness was such that in the cir- cumstances it would afford reasonable excuse for delay in presenting the appeal, would not justify the Court in exercising its discretion under S. 5. It is, however, a matter for the Court to consider in each case whether the effect of illness, as proved, is such as af- forded sufficient cause for the failure to present the appeal within the time prescribed by the law. The onus lies on the applicant to satisfy the Court that he had sufficient cause for not preferring the appeal within time.” In the matter before us, the applicant after filing the affidavit and the medical certificate has discharged his onus and the revenue has not filed any contrary evidence in this regard. Accordingly, we are of the vie that there was sufficient cause in the late filing of the appeal.
6. Keeping in vie the facts and circumstances of the case and the legal posi- tion discussed above, we hold that the applicant was prevented by sufficient cause in the late filing of the appeal. The delay in the filing of the appeal is condoned.