ORDER
S.L. Peeran, Member (J)
1. In this Revenue appeal, Revenue has filed the application for condoning 133 days delay. The reason stated are reproduced below:
Reasons For Filing Condonation Of Delay
This application is against the Order-in Appeal No. 123/2000(M-II) dated 21/11/2000 passed by the Commissioner of Central Excise (Appeals), Chennai-34 relating to M/s. Shasun Chemicals & Drugs Ltd., Chennai received in this office on 29/11/2000.
The issue involved in this case is eligibility of refund of the differential MODVAT credit utilised on goods exported by the assessee consequent of the CEGAT final order No. 209/95, dated 24/3/1995.
In respect of the above CEGAT Final Order the department preferred a Reference before the Honourable CEGAT on the question of limitation which was dismissed by the CEGAT as not admissible. Against this order department has preferred a RCP before the High Court, whish is pending decision and no stay has been granted by the High Court, till date.
Inadvertently, there has been some delay in filing appeal in respect of the present Order-in-Appeal. Since the issue involved is subsequent to the period covered by the above CEGAT Final Order, it is submitted that in the interest of justice this application needs to be admitted after condoning the delay.
In the above circumstances it is prayed that the Hon’ble Tribunal may please condone the unintentional delay of 133 days and allow the appeal and admit the appeal and thus render justice.
Sd/-
Commissioner of Central Excise
Chennai-II Commissionerate
2. Ld DR Shri Mani submits that the delay need not be explained on day-to-day basis as held by the Apex Court in the case of Collector Anantnag v. MST Kathiji . He seeks for indulgence of the Tribunal to condone the delay in the matter as Revenue has got a good case on merits.
3. Ld. Counsel Shri Murugappan opposes the prayer and submits that the reason given is “inadvertence”. The department has not spelt out sufficient grounds for condoning the delay. Merely stating the ground as “inadvertent delay” cannot be considered as a ground for condonation. He submits that in the case of Collector Anantnag v. MST. Kathiji, the delay was only one day and in that context the Apex Court laid down the proposition that one day’s delay cannot be rejected, while in the present case, the delay is 133 days and the department ought to have filed a time chart explaining the delay after the lapse of statutory period. He submits that this case squarely falls within the Apex Court judgment rendered in the case of UOI v. Tata Udogava Ltd. 1988 (38) ELT 739 (SC) wherein the bench of 3 Judges did not condone the UOI’s appeal which had a delay of 51 days when a similar prayer was made. He seeks for dismissal of the application by applying the ratio of this judgment.
4. On a careful consideration, we notice that the Commissioner has not furnished sufficient reasons for consideration to condone the delay. Merely stating that there was “inadvertence” is not sufficient. The Commissioner was expected to spell out the reasons which will not show negligence on the part of the Revenue in filing the appeal belatedly. As no reasons have been spelt out, the Ld. Counsel’s prayer for dismissal of the COD application is justified as the Apex Court comprising of 3 Ld. Judges did not accept UOI’s ground to condone delay of 51 days on the ground of “Inter departmental correspondence and processing of the matter to enable the department to file the instant petition.” In his case, as no reasons has been spelt out and explained, therefore the Apex Court judgment rendered in the case of UOI v. Tata Udogawa Ltd. clearly applies to the facts of the present case. The COd application is rejected and as a result, the Stay application and the appeal is also rejected
(Dictated and pronounced in open Court)