ORDER
V.P. Gulati, Vice President
1. The prayer in the application is for dispensation of pre-deposit of an amount of Rs. 44,722.30 demanded from the appellant for the reasons that the Modvat credit had been taken irregularly.
2. The Learned Advocate Shri Raghavan for the appellants had pleaded that Learned lower authority has not disposed of the appeal on merits and has dismissed the appeal as barred by limitation. He has pleaded that there is a delay of 18 days in filing the appeal. The delay had occurred, he pleaded on account of the consultant who had a death-in the family. He has pleaded that the consultant had given the dates when he had to go out of station on account of his sister’s serious illness and also the date on which his sister expired. He has pleaded that the consultant has stated that he had to be away in connection with the death of his sister. He has pleaded that the Consultant who was authorised representative of the Company and had been concerned with all the matters relating to Excise and Customs, on receiving a message from his relatives about his sister’s sickness, had to suddenly leave town and did not have time to hand over the papers remaining in his house during his absence. He has pleaded, the circumstances under which the appeal could not be filed in time do not show that there was any lack of diligence on the part of the appellants. He has pleaded that the number of decisions of the Courts wherein it has been held that if the delay occurred for bonafide reasons because of the Consultant or the Advocate the delay should be condoned. He has pleaded that the appellants have a prima facie good case on the grounds of limitation and has prayed for stay on that ground.
3. Heard the Learned JDR, Shri Arulswamy for the department. He has adopted the reasoning of the Learned Lower Authority for not condoning the delay.
4. I have considered the pleas made by both the sides. The Learned lower appellate authority has not condoned the delay for the reasons recorded by him in paras 6 to 8 of his order, which are reproduced below for convenience of reference :-
“Under Section 35 I am, no doubt, empowered to condone the delay upto 3 months if the appellant shows evidence that he was prevented by sufficient cause in filing the appeal within the statutory period. Here the delay in filing the appeals has been admitted. However the cause for delay is stated to be the death of the sister of the Consultant and absence of their Director vide letter dated 12-1-1996 and 13-1-1996.
I am afraid that both the reasons are not convincing. The appellant is a limited company and not a sole proprietorship concern and so the company ought to have exercised due caution and diligence in adhering to the statutory time limit. It appears to be a case of inaction or negligence in not filing the appeals in time. I therefore do not accept the explanation for condoning the delay. In any case the appellant cannot plead that they were prevented from filing the appeal in time.
As held by the Hon’ble Supreme Court in the case of Ramagowda and Ors. v. Special Land Acquisition Officer, Bangalore – 1988 (2) SCC 142, the negligence, gross inaction and lack of bonafide of a party or counsel is no reason to expose the opposite party i.e., (the Government in this case) to a time barred appeal. In the circumstances, the delay in filing the subject appeal against the impugned order is not condonable.”
It is seen that the Learned lower appellate authority has relied upon the judgment of the Hon’ble Supreme Court cited in para 8 above. It is observed that the ratio of this decision as mentioned in para 8 as above would be applicable only when it could be read that there was gross inaction and lack of bonafide of the part of the party or counsel. In the present case, the appellant’s Consultant pleaded that he had been entrusted with the papers for filing the appeal and he had to suddenly go out of station after getting a message about sickness of his sister who ultimately passed away on 19-12-1995. On account of his leaving suddenly, it has been pleaded that as seen from the affidavit filed by the Learned Advocate, he did not have time to hand over the papers to anybody in the appellant company or to any other consultant. I observe that in a case where unavoidable circumstances are shown to exist for reason of which the counsel or the appellant is not able to proceed further in the matter for a certain period and this circumstance is found to be genuine, a liberal view would be called for. In the present case, the Learned Consultant has mentioned in the affidavit that his sister passed away on 19-12-1995, the date which falls within the limitation of three months available for filing the appeal. It is natural in the Indian context that a person will have to stay for taking care of the ceremonies thereafter.
5. The Learned lower appellate authority has not doubted the plea of the Learned Consultant as to the death of his sister and the circumstances under which he had to be away. Since the consultant has filed an affidavit and the circumstances set out in the affidavit are not doubted the credence has to be given to the consultant’s plea. In the present case therefore I hold the appeal could not be filed in time for bonafide reasons and for that reason I hold that the delay of 18 days in filing the appeal beyond the period of three months is condonable. I hold that the Learned lower authority’s order is not sustainable. I, therefore order dispensation of the pre-deposit of the amount as demanded and set aside the order of the Learned lower authority for de novo adjudication after affording the appellants an opportunity of personal hearing on merits and after consideration of plea under Section 35F…. Appeal is thus allowed by remand.