S.L. Peeran, Member (J)
1. This appeal arises from the Order-in-Appeal No. 33/99, dated 25-2-1999 passed by the Commissioner (Appeals) rejecting the appeal solely on the ground of time-bar. As the issue lies in a short compass, therefore, the appeal itself is taken up for disposal by condoning the delay of 41 days in filing the appeal.
2. Appellants had received the Order of the Commissioner (Appeals) on 27-2-1999 and they were required to have filed the appeal on or before 27-5-1999 and they have filed the appeal on 8-7-1999 and hence there is a delay of 41 days. The reason given is that immediately on receipt of the impugned order, the proprietor of the appellants had been admitted in Padmam Hospital for treatment of viral Hepatitis B (Jaundice) and had been discharged from the Hospital on 5-6-1999 and immediately thereafter, steps had been taken to file the appeal. In view of the medical certificate produced in support of the plea of illness, the delay in filing the appeal before the Tribunal is condoned.
3. The Commissioner (Appeals) had dismissed the appeal on the ground that there was delay of seven days in filing the appeal before him and the reason given by the appellant was an afterthought. Appellant had contended before the Commissioner (Appeals) that he was not in station and being the proprietor he could not engage another person to file the appeal before the Commissioner (Appeals). He has not accepted the reason given by the appellant and held that there was gross negligence in not filing the appeal in time.
4. Heard the learned Counsel. He submits that since the delay is only marginal, the same may be condoned as the reasons given were genuine and not as an afterthought.
5. The learned DR opposes the condonation of delay and submits that the Commissioner (Appeals) has rightly rejected the appeal.
6. On consideration of the submissions made, we notice that the delay is only marginal. In view of the Hon’ble Supreme Court judgment directing to take lenient view where the delay is marginal [see Collector, Anantanag v. Mst. Katiji – 1987 (28) E.L.T. 185 (S.C)], the delay of seven days in filing the appeal before the Commissioner (Appeals) is condoned and the matter remanded to him to take up the matter and dispose of the same on merits after giving due opportunity of hearing to the appellants.