(Prayer: Appeals under Section 35G of the Central Excise Act, 1944 against the order dated 16.12.2009 made in Misc. Order No.643 of 2009 and Final Order No.40080 of 2013 dated 27.2.2013 on the file of the Customs, Excise and Service Tax Appellate Tribunal, Chennai.)

Common Order: (R. Sudhakar, J.)

1. The petitioner seeks to enter the portals of the High Court by way of appeal after trying every conceivable method for scuttling the adjudication process under one pretext or the other.

2. The present petitions, we are now concerned, are for condonation of delay in filing the appeals against the orders passed by the Customs, Excise and Service Tax Appellate Tribunal. One appeal is filed against the miscellaneous order of the Tribunal dated 16.12.2009 in Miscellaneous Order Nos.642 and 643 of 2009 and the other one is as against the final order passed by the Tribunal dated 27.2.2013 in Final Order Nos.40078 -40080 of 2013.

3. There are so many dates and events involved in these petitions. We are dealing with the first petition relating to the condonation of delay of 1409 days in filing C.M.A.SR.No.40650 of 2014.

4. The facts in both the cases are identical and therefore, we are inclined to set out the same in brief.

The petitioner is engaged in the manufacture of chewing tobacco. It is alleged by the Department that the petitioner during the period 01.11.1996 to 07.06.2001, cleared the branded Chewing Tobacco in the guise of unbranded Chewing Tobacco without payment of duty. After investigation, a show cause notice was issued on 04.12.2001 and the supply of relied upon documents was completed on 14.2.2002. The Adjudicating Authority passed an order dated 29.10.2004 in Order-in-Original No.10/ADC/2004 stating that the noticee demanded some unrelied upon documents and even after supply, the reply was not submitted under one pretext or other. The noticee was directed to file their reply on 14.10.2003 and personal hearing was fixed on 02.12.2003, again on 18.5.2004 and finally on 16.7.2004. Relying upon the decision of the Allahabad High Court in the case of Modipon Ltd. V. CCE, Meerut reported in 2002 (144) ELT 267 (All), the Adjudicating Authority decided to proceed with the adjudication. The Adjudicating Authority observed that even though the basic requirement of principles of natural justice has been observed, the petitioner has failed to avail the opportunity. Hence, he passed an order dated 29.10.2004 demanding duty invoking proviso to Section 11A(1) of the Central Excise Act, 1944, penalty under Section 11AC of the Central Excise Act, penalty under Rule 173Q and Rule 25 of the Central Excise Rules together with interest under Section 11AB of the Central Excise Act, 1944. It appears, that as against this order, an appeal was preferred before the Commissioner (Appeals) and it is stated that the Appellate Commissioner vide order dated 13.4.2005 confirmed the adjudication order on merits in Order in Appeal No.48 of 2005.

5. The petitioner, thereafter, filed an appeal before the Tribunal, which, by order dated 06.10.2005 in Order No.1419-1421 of 2005 set aside the order of the Adjudicating Authority as well as the first Appellate Authority and allowed the appeal by way of remand. The Tribunal directed the original authority to pass fresh orders of adjudication in accordance with law after giving the parties a reasonable opportunity of obtaining copies of all the relied upon documents and after returning all the non-relied upon documents to them. For better clarity, the relevant portion of the order of the Tribunal dated 06.10.2005 reads as follows:

"4. For the reasons noted above, we set aside the orders of both the lower authorities and allow these appeals by way of remand. The original authority shall pass fresh orders of adjudication in accordance with law after giving the parties a reasonable opportunity of obtaining copies of all the relied upon documents [not hitherto supplied] and after returning all the non-relied upon documents to them. In this connection, it is made clear that the appellants shall be allowed to inspect all the documents not hitherto supplied, listed at pages 175 to 164 of paper book (Volume No.X) filed in Appeal Nos.E/628 & 629/2005, and to obtain copies/extracts of those records in respect of which it might not be feasible for the department to supply copies. Copies of other documents shall be issued to the parties. It goes without saying that a reasonable opportunity of being personally heard also shall be afforded to the appellants. We do expect the adjudicating authority to conduct his proceedings within his territorial jurisdiction comprising the assessees premises. It is also desired that it be ensured that copies of orders of adjudication issued to the parties bear the signature of the adjudicating authority."

6. On remand, hearing was fixed on 12.7.2006. It is stated in paragraph 14 of the affidavit filed in support of the condone delay petition, that the petitioner had expressed his inability to respond to the notice unless and until all the unrelied upon documents are given together with relied upon documents in compliance with the direction of the Tribunal. Again the personal hearing was fixed on 23.8.2006 informing the petitioner to inspect the records as mentioned in the order of the Tribunal. The petitioner states that the Commissioner requested the petitioner to collect the entire set of documents in terms of the direction of the Tribunal from 4.10.2006 to 6.10.2006. In paragraph 15 of the affidavit, the petitioner states that the petitioner along with two consultants went to the office of the Commissioner for the purpose of collecting the unrelied documents and obtaining copies of documents relied upon. However, the petitioner states that the Assistant Commissioner informed them that after taking copies of the documents, the petitioner will be intimated vide letter dated 04.10.2006. (That letter of the Commissioner has not been enclosed). In paragraph 16 of the affidavit, the petitioner states that there was no response from the Assistant Commissioner despite his promise vide letter dated 04.10.2006. Hence, the petitioner sent reminder letter dated 5.2.2007 (not enclosed in the typed set). Thereafter, the petitioner states that he moved an application before the Tribunal on 30.6.2008 under Rule 41 of the CESTAT (Procedure) Rules, 1982. The Tribunal was very much upset about the conduct of the petitioner approaching the Tribunal over and again for such a trivial matter wasting the valuable time of the Tribunal. The relevant portion of the order of the Tribunal dated 30.9.2008 reads as follows:

"4. We are thoroughly unpleasant over this trend of parties approaching the Bench over and again with prayers of the kind made in the present applications. The valuable time of this Tribunal cannot be occupied for such purposes. "

7. The Tribunal, thereafter, by order dated 30.09.2008 in Miscellaneous Order Nos.412 to 414 of 2008, directed the Original Authority to depute an officer to sit with the parties and sort out the grievance of not having obtained the copies of relied upon documents. The Tribunal directed the Original Authority to pass fresh order of adjudication within a period of three months from the date of hearing. The Tribunal also directed the Adjudicating Authority to fix the date of hearing within 30 days from the date on which the relied-upon documents have been supplied.

8. Pursuant to this order, personal hearing was fixed on 29.10.2008 and the parties appeared before the Assistant Commissioner and furnished a written request. Thereafter, vide letter dated 03.12.2008, the petitioner was requested to collect documents from the office on 10.12.2008 or 11.12.2008. The petitioner along with his tax consultant visited the office on 11.12.2008 and received copies of all the available documents as requested by them and the same was duly acknowledged. For better clarity, paragraph 17 of the order-in-original dated 17.12.2009 reads as follows:

"17) Shri. Ammaiyappan, Proprietor of V.K.Palappa Nadar Firm, Arivithurai, Partner of V.K.P.K.Arivithurai and Bros. and T.Subbiah Nadar, Consultant (with an authorization to collect the documents from the concerned parties) visited this office on 11.12.2008 and received copies of all the available documents as requested by them vide this office letter dated 11.12.2008 with the list of documents wherein the Nos. of pages and sheets have been furnished and the same were acknowledged by them. Shri.K.Ananthakrishnan, Partner of V.K.P.K.Ammayappan & Bros. and P.K.Kutralingam Partner of V.K.Palappanadar & Co., who also visited this office were informed vide letter dated 11.12.2008 that all the originla unrelied upon documents have been handed over to Shri.K.Ammaiyappan, Proprietor of V.K.Palappa Nadar Firm on 7.2.2002 itself as acknowledged by him."

9. Thereafter, personal hearing was fixed on 07.01.2009 before the Joint Commissioner. It appears that the petitioner did not appear for the personal hearing and they sent a letter dated 05.1.2009 requesting for supply of documents not yet supplied to them and for return of non relied upon documents. Being oppressed by the conduct of the party, the Adjudicating Authority, proceeded to go ahead with the adjudication.

10. Accordingly, the de-novo order of adjudication was passed on 17.2.2009, in which the conduct of the petitioner could be seen from paragraph Nos.7,8,9,10 and 11, which reads as follows:

"7) V.K. Palappa Nadar Firm and VKPK Arivuthurai & Brothers vide their reply dated 6.7.2006 stated that the denovo orders have necessarily to be passed by the Additional Commissioner only. In reply to this, a notice of hearing dated 14.7.2006 informing that as per section 12 E(1) of the Central Excise Act, 1944, a Central Excise officer may exercise the powers and discharge the duties conferred or imposed under the Central Excise Act on any other officer who is subordinate to him, as no regular Additional Commissioner has been posted to Tirunelveli Commissionerate, Commissioner is exercising the powers of the Additional Commissioner under the above said provision of Central Excise Law. Further, the parties were requested to specify the name of the documents they wish to inspect and they were permitted to inspect all the records listed at pages 175 to 164 of the paper boob (Volume No : X) filed in Appeal advance intimation of the records proposed to be inspected and proposed date of visit. They were again intimated to appear on 23.08.2006 at 1100 Hrs. before the Commissioner.

8) V.K.Palappa Nadar Firm and V.K.P.K Arivuthurai & Brothers vide their letter dated 26.7.2006 addressed to the CBEC, copy of which was endorsed to this office wherein they stated that only Additional Commissioner shall be competent to adjudicate the cases. Subsequently, vide their letter dated 29.8.2006, addressed to the Additional Commissioner stated that it would be convenient for them to complete the work of taking copies of documents and perusing the documetns in this office on 4.10.2006 to 6.10.2006. Accordingly, they were permitted vide this office letter C.No:V/24/15/16/2006 -Adjn. Dated 13.9.2006 to visit this office for the purpose of collecting the copies of relied upon documents on the above dates as requested by them. Further, vide this office letter C.No:V/24/15/06/2006-Adjn. dated 19/02/2007, all the parties were informed to visit this office on any working day before 27.2.2007 to inspect and identify the documents for obtaining copies/extracts of the same. In response to this, their consultant Shri.T.Subbiah Nadar, on the strength of an authorization dated 4.10.2006, given by the parties, visited this office on 23.2.2007, and received copies of the documents under his acknowledgement. Earlier also, they had received copies of 260 documents vide this office letter C.No:V/24/15/283/2001-ADJ. dated 11.5.2004 on their request.

9) After providing copies of the documents as required by the parties, a letter dated 23.2.2007, was sent to the parties requiring them to appear for personal hearing before the Additional Commissioner, on 7.3.2007 at 1430 Hrs. For this, the parties vide their letter dated 5.3.2007, requested for cross examination of the mahazar witnesses, deponents and the investigating officers. They were intimated vide this office letter dated 15.3.2007 by the Additional Commissioner, to inform a convenient date before 30.04.2007, for cross examination of the mahazar witnesses as required by them. However, the parties neither responded for the above personal hearing nor intimated a date for cross examination.

10) V.K.Pallappa Nadar Firm vide their letter dated 6.2.2008 requested for copy of approval for issue of Show Cause notice given by the Commissioner of Central Excise for which a reply was sent to them vide this office letter C.No:V/24/15/06/2006-Adjn. dated 3.4.2008 informing that the Commissioners approval letter is not a relied upon documents and hence the same cannot be supplied as per the decision of the Honble Supreme Court in the case of R.K.Mill Board (P) Ltd., Vs. Commissioner reported in 2003 (139) ELT A 085 (SC).

11) They were also requested to appear before the Additional Commissioner on 22.4.2008 at 1.00 Hrs. for personal hearing. The parties, vide their reply dated 16.4.2008 stated that the approval of the Commissioner for the SCN was an open document and they are entitled for a copy of the approval and in the absence of its, it is not practicable for them to appear for PH and did not attend the personal hearing."

11. From the original order, it could be seen that another personal hearing was granted on 16.7.2008 in addition to the earlier personal hearing. Since the petitioner did not appear, further hearing was fixed on 23.7.2008, for which also the petitioner neither replied nor appeared and hence, as a last chance, further personal hearing was granted on 13.8.2008 and even on that date, the petitioner did not appear but sent a letter dated 6.8.2008 questioning the jurisdiction of the authority.

12. We are pained to note that the Adjudicating Authority, in paragraph 20 of the Order, recorded the number of dates and events in a tabular column, which we extract the same hereunder:

DateSubject

08-06-2001Case Registered

04-12-2001Show Cause Notice Issued

07-02-2002

14-02-2002All un-relied documents and copies of all the relied upon documents were supplied to Shri K. Ammaiyappan by HPU, Madurai under acknowledgement on behalf of all the four firms.

06-05-2002Copies of 132 transport documents were supplied to Shri K. Ammaiyappan at their request

01-11-2002Tirunelveli Commissionerate was formed by bifurcating Madurai Commissionerate

30-07-2003Case records were handed over by Madurai Commissionerate to Tirunelveli Commissionerate(HPU).

01-08-2003 &

30-09-2003Party was requested to submit reply to Show cause notice. Transport documents

08-09-2003M/s. V. K. Palappa Nadar Firm asked for copies of all TRMS transport documents

30-10-2003Party insisted on supply of attested copies of 353 transport documents and the Commissioners approval letter for issue of SCN although it was clearly spelt our in the SCN itself(in para)

14-11-2003Opportunity for perusing the documents was extended.[FIRST]P.H. was fixed; and reply to SCN was requested

24-11-2003Party insisted on a supply of copies of documents by Post, without availing the opportunity to peruse the documents. They did not appear for P.H.

19-04-2004Copies of 78 transport documents were supplied and the party was informed that the Commissioners Approval letter is not as relied upon document. And[SECOND] P.H. was fixed as all the relied upon documents have been supplied and reply to SCN was requested

28-04-2004Party claimed that the 78 documents supplied were the ones already available with them. They asked for copies of 271 TRMS transport documents and insisted for the supply of Commissioners approval letter.

11-05-2004Attested copies of 260 TRMS transport documents were supplied to the assessee by RPAD. It was reiterated that Commisssioners approval letter was not relied upon document and reply to show cause notice was requested

22-05-2004 &

11-06-2004Party requested for the supply of copies of the remaining 11 transport documents. He again insisted for the supply of Commissioners approval letter.

25-06-2004[THIRD] P.H. was fixed and reply to show cause notice was requested

08-06-2004 [recd on 09 -07-2004]M/s. V.K.P.K. Aruvithurai & Brothers, the second party to the SC asked for the supply of copies of the 271 transport documents.

08-07-2004The party sent three letters.

[a] Vide one letter, they asked for the supply of copies of the remaining 11 documents in connection with SCN No.50/2001.

[b] Vide another letter, ;they AGAIN asked for the supply of copies of all the 271 TRMS transport documents, in connection with SCN No.51/2001.

[c] Vide yet another letter, they asked for copies of all the relied upon documents, in connection with SCN No.50/2001.

29-10-2004Order-in-Original passed Exparte

13-01-2005In addition to the above, at the first appeal stage, the assessee, vide his letter dated 13-01-2005 addressed to the Commissioner(Appeals), submitted some lists of documents/copies of documents said to be received/not received by them, which differed a lot from their three letters dated 08-07-2004.

13-04-2005Order-in-Appeal passed upholding OIO.

01-02-2006Receipt of CESTATs Final Order No.1419-1421/2005 dated 06-10-2005 wherein the case has been remanded for de-nevo adjudication.

08-06-2006Intimation of Personal Hearing fixed on 12-07-2006 by the Commissioner.

06-07-2006Assessee replied that the Commissioner is not the Original adjudication authority to fix the PH; requested to fix PH by the Additional Commissioner.

14-07-2006Intimation of Second Personal Hearing fixed on 23-08-2006 by the Commissioner

26-07-2006Assessees letter addressed to the Chairman, CBEC, New Delhi to instruct the Commissioner to keep in abeyance from the process of adjudication and to entrust the same to ADC.

29-08-2006Assessee requested for prior appointment for receiving relied upon documents.

13-09-2006Intimation of permission to visit his office for collecting copies of relied upon documents on 04-10-2006,05-10-2006 and 06-10-2006.

05-02-2007Assessee requested for all authenticated copies in a single day.

23-02-2007T. Subbiah Nadar, Consultant received copies fo relied upon documents.

23-02-2007Intimation of PH fixed on 07-03-2007 by ADC.

05-03-2007The assessee replied that it is too early to fix a PH and they have not attended PH.

15-03-2007The assessee was asked to inform a convenient date before 30-04-2007 for cross examination.

06-02-2008The assessee requested for copy of Commissioners approval letter for issuing SCN

03-04-2008Informed the assessee that as Commissioners approval is not a relied upon document, it will not be supplied.

08-04-2008Intimation of PH fixed on 22-04-2008 by ADC

16-04-2008The assessee informed that they would attend the personal hearing only after receipt of all relied upon documents and non relied upon documents and on cross examining the mahazar witnesses, deponents of the statements and the investigating officers.

10-07-2008Corrigendum to SCN for change in adjudicating authority intimated to the parties.

11.07.2008Parties were requested to appear for P.H. on 16.07.2008 before the Joint Commissioner.

16-07-2008Letter was sent to the Parties asking them to appear for P.H. on 23.07.2008

28-07-2008Another letter sent requesting them to appear for P.H. on 13.08.08.

11.08.2008Detailed reply to CESTAT sent with copies of all acknowledgement given by Parties for receipt of documents

13.08.2008Partys letter dated 06.08.08 received stating that they will not appear for P.H. before the Joint Commissioner.

27-08-2008Review Section was asked to request CESTAT to dispose the case early as the adjudication was pending for more than one year and against PACs recommendation.

15.10.2008As a last chance, a letter sent fixing P.H. on 22.10.2008

17-10-2008CESTAT, Chennai vide its Misc. Order No:412-414/08 dated 03.10.2008 directed this office to sit with the parties across a table and sort out the partys grievance of not having obtained copies of all relied upon documents.

22-10-2008The party were informed that the Joint Commissioner will be the adjudicating authority.

22-10-2008The Joint Commissioner deputed A.C, Rajapalayam to sort out the problem with the parties.

23-10-2008A.C, Rajapalayam has informed the parties to furnish the list of documents on 29.10.2008.

29.10.2008The parties submitted the list of the relied upon documents to A.C, Rajapalyam.

03-12-2008The parites were informed by this office to collect copies of the relied upon documents on 10.12.2008 or 11.12.2008

11-12-2008The copies of the relied upon documents available in this office as required by them were provided to the parties.

17-12-2008The parties were informed by this office to appear for P.H. on 07.01.2009.

06-01-2009Letter from the parties again asking for copies of documents not yet supplied to them.

07-01-2009The parties did not attend P.H.

-

13. The Adjudicating Authority in paragraph 21.1 clearly comes to hold that the petitioner was adopting dilatory tactics to delay the adjudication proceedings. The Adjudicating Authority also recorded the supply of documents and the proof of acknowledgment in paragraph 22.1 of the de novo adjudication order. He has given a clear finding in paragraph 22.2 of the order, which reads as follows:

"that the parties have taken the copies of documents from the Department in the second week of February, 2002 and the same were produced to him and that the documents are contained in four box files and he need enough time to go through the voluminous records and requested for more time to file their reply. This proves beyond doubt that the parties have received the copies of all the relied upon documents during February 2002."

14. Accordingly, the Adjudicating Authority proceed to pass the order of adjudication confirming the demand of duty. The relevant portion of the order reads as follows:

"ORDER

1. I confirm the demand of duty amount of Rs.38,78,141/- (Rupees Thirty eight lakhs seventy eight thousand one hundred and forty one only) payable on the illicitly cleared chewing tobacco during the period 1.11.1996 to 07.06.2001 under the proviso to Section 11A(1) of CEA, as demanded in show cause notice dated 4.12.01 from M/s.V.K.Pallappa Nadar firm, Dhalavaipuram.

2. I impose a penalty of Rs.38,78,141/= (Rupees Thirty eight lakhs seventy eight thousand one hundred and forty one only) on M/s.V.K.Pallappa Nadar Firm Dhalavaipuram under Section 11AC of Central Excise Act 1944.

3. I impose a penalty of Rs.1,00,000/- (Rupees one lakh only) on M/s.V.K.Pallappa Nadar firm, Dhalavaipuram under Rule 173Q of erstwhile CER, 1944 and Rule 25 of Central Excise Rules.

4. I demand interest from M/s.V.K.Pallappa Nadar firm, Dhalavaipuram at the appropriate rate under Section 11AB of Central Excise Act, 1944.

15. In paragraph No.18 of the affidavit filed in support of the condone delay petition, the petitioner relied upon the Joint Commissioners letter dated 03.12.2008 (not enclosed). In paragraph 19 of the affidavit, the petitioner relied upon the letter of the Superintendent, Adjudication dated 17.12.2008 (not enclosed). The petitioner relied upon the letter dated 05.01.2009 sent by the petitioner (not enclosed) to impress this Court that there has been gross violation of principles of natural justice, whereas, as we find from the earlier records of the proceedings of the de novo adjudication, whatever was available and relevant has already been given. It appears that few records were not traceable. Even otherwise, the Authority has come to hold that they are not placing reliance upon those documents and the proceedings were initiated only upon the relied upon documents.

16. Thereafter, the petitioner filed an application under Rule 41 of the CESTAT Procedure Rules, 1982 before the Tribunal on 24.09.2009 contending that there is gross violation of the order of remand passed by the Tribunal on 30.09.2008 in Miscellaneous order Nos.412-414 of 2008 and subsequent order dated 16.12.2009 in Miscellaneous Order Nos.642,643 of 2009. The Tribunal was of the view that the statute provides remedy of appeal against the order of adjudication and all these contentions can be urged before the Commissioner (Appeals). The relevant portion of the order of the Tribunal dated 16.12.2009 reads as follows:

7. After considering the submissions made by both sides and taking into account the observation made by the Tribunal while passing the earlier Miscellaneous Order on 30.9.2008, we find that the statute provides for an appeal against the order of the adjudicating authority, the jurisdictional Joint Commissioner in this case, before the first appellate authority, namely, the jurisdictional Commissioner of Central Excise (Appeals). The contentions advanced on behalf of the applicants that they have not been supplied with the necessary documents are being disputed by the department vehemently. In fact, it has been stated that voluminous copies of documents have been supplied to the applicants. It has also been contended on behalf of the department that the impugned orders have been passed only relying on the documents which have been provided to the applicants. It has also been submitted before us on behalf of the department that all the documents which could not be supplied to the applicants have not been relied upon while passing impugned orders.

8. Under the circumstances, we are of the view that if the applicants are aggrieved by the impugned orders they should approach the first appellate authority by way of filing appeals as provided under the statute, who can look into their grievances including the grievances regarding alleged non supply of documents and alleged non compliance of the directions of the Tribunal. We see no necessity whatsoever to entertain these applications directly which have been filed before the Tribunal bypassing the normal channel of appeals provided under the statute. Accordingly, both the applications are dismissed.

17. This order is now the subject matter of appeal, in which condone delay application has been filed, in CMASR.No.40650 of 2014 interalia contending that the Tribunal failed to exercise his jurisdiction to get its order complied with.

18. The issue before us is as against this order of the Tribunal dated 16.12.2009 in Miscellaneous order Nos.642 and 643 of 2009, appeal has been sought to be filed before this Court and for that there is a delay of 1409 days. In the affidavit filed, the petitioner states that they pursued the matter by way of appeal before the Commissioner (Appeals) as directed by the Tribunal in Miscellaneous order No.642 and 643 of 2009 dated 16.12.2009, which part of the order we have already set out, which went against the petitioner on the ground of limitation. That order of the Commissioner (Appeals) dated 31.1.2011 in Order in Appeal No.43-45 of 2011 was taken on appeal before the Tribunal. The Tribunal, by order dated 27.2.2013 in Order No.40078-40080 of 2013, placing reliance on the decision reported in 2008 (221) ELT 163 (SC) [LQ/SC/2007/1564] (Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur followed in the subsequent decision reported in 2010 (257) ELT 3 (SC) (Amchong Tea Estate V. Union of India) dismissed the appeals holding as follows:

6.1. It is seen that the preamble of the de novo Adjudication dated 17.02.2009 indicates that any person remain himself aggrieved by the order may appeal against the same to the Commissioner (Appeals). It is noted that the Tribunal has not given any observation on condonation of delay of filing of appeals before the Commissioner (Appeals).

7. The Honble Supreme Court in the case of Singh Enterprises (Supra) held that Commissioner (Appeals) has no power to condone the appeal beyond the stipulated period. The relevant portion of the said decision is reproduced herein below:

8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period."

It is well settled that the learned Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond the period as prescribed under proviso to Section 35(1) of the Act, 1944. Admittedly, the appeals were filed beyond the stipulated period under proviso to Section 35(1) of the Act, 1944. Hence, we find that there is no need to discuss the matter on merits as the appeals were dismissed as time-barred by the Commissioner (Appeals).

8. In view of the above discussions, we do not find any infirmity on the order of the Commissioner (Appeals). Accordingly, all the appeals are dismissed and stay applications are disposed of.

19. As against this order of the Tribunal dated 27.02.2013, another appeal has been filed with a delay of 199 days in C.M.A.SR.No.40653 of 2014.

20. We are now concerned with the issue of condonation of delay in filing the appeals. The reason for the delay, though confusing in various paragraphs of the affidavit filed in support of the petitions to condone the delay, we are able to infer that as against the Miscellaneous order of the Tribunal in 642 and 643 of 2009 dated 16.12.2009, the petitioner was seriously pursuing the matter before the Commissioner (Appeals) and thereafter before the Tribunal on the merits of the case and therefore, he could not pursue the matter before this Court. In effect, after exhausting the said remedy, in the usual course, having failed before the Tribunal, the petitioner now woken up to challenge the order of the Tribunal. In fact, the petitioner did not rest with the final order of the Tribunal in 40078-40080 of 2013 dated 27.2.2013. He also filed an application for rectification of mistake, which came to be dismissed on 12.11.2013 in Order Nos.42674-42676 of 2013. Thereafter, the present two appeals have been filed with a delay.

21. The only reason stated in paragraph No.28 of the affidavit that the delay is neither willful nor wanton, but due to the above stated facts. We find that the facts that we have narrated clearly show that at no point of time the petitioner showed sincerity in pursing the matter by participating into the adjudication proceedings. Time and again on the basis of plea of some return of unrelied upon documents, he has sought for postponement of the proceedings or filed petitions to scuttle the adjudication process. No doubt at the first instance, the Tribunal showed some indulgence calling upon the parties to give relied upon and unrelied upon documents, but after the first round of litigation, we find that the petitioner seems to be harping on the same issue again and again much to the annoyance of the Original Adjudicating Authority, who passed the order on 17.12.2009 as well as the Tribunal, who had to suffer the consequence of repeated application under Rule 41 of the CESTAT Procedure Rules. The Tribunal was very much annoyed on the conduct of the petitioner which we have already extracted above. In fact, we find that by jumbling various dates and events, the petitioner was attempting to confuse this Court as if there was a bona fide reason for the delay. After thorough examination and wasting the valuable time of this Court for more than 1 hours, we are able to find that there is absolutely no justification for the delay of 1409 days and the entire exercise seems to be to further scuttle the Departments demand for duty, penalty and interest.

22. The present Petitions for condonation of delay appear to be a dilatory tactics and there is no bona fide reason for the inordinate unexplained delay of 1409 days. In any event, the explanation given appears to be self-serving and to defeat the adjudication process. The time of the Original Adjudicating Authority, the Appellate Tribunal and this Court is wasted in this process, which we find lack bonafides on the part of the petitioner.

23. The delay of 199 days in filing the appeal as against the order of the Tribunal dated 27.2.2013 also is based on the same plea and none of the documents relied upon in the typed set has been enclosed and the delay has been casually stated in paragraph 25 to 28 of the affidavit, which reads as follows:

"25. The petitioner further submits that aggrieved by the same the petitioner filed an appeal before the Tribunal along with application for stay under Section 35F of the Act. The appeal was listed for hearing on various dates viz., 21.11.2011, 18.04.2012, 21.08.2012, 21.02.2013 and finally the appeal came to be heard and was dismissed vide order dated 27.2.2013 in final order No.40078-40080/2013 signed on 21.3.2013 and served on the petitioner by post on 15.4.2013. The learned Tribunal while confirming the order of the appellate authority failed to see that the orders are passed without complying with the direction of the Tribunal but proceeded to observe that the adjudicating authority had complied with the Tribunal direction clearly showing gross non application of mind. The petitioner submits that the Tribunal ought to have seen that the petitioner had bono fide approached the Tribunal under Rule 41 which was rejected on the premise that the appeal would be only before the First Appellate Authority and thus on applying Sec 14 of The Limitation Act, The First Appellate Authority ought to have excluded the Time spent in prosecuting the Miscellaneous Application under Rule 41.

26) The petitioner thereafter filed application for rectification of mistake on 13.06.2013 within 60 days of receipt of the Tribunal order dated 27.02.2013 before the Tribunal for the purpose of computing for period of limitation by the appellate authority on the premise that the time spent bona fide before the Tribunal under Rule 41 of CESTAT (procedure) Rules sought to be excluded in terms of sec 14 of the limitation Act.

27) The petitioner submits that aggrieved with the above said order of the Customs, Excise and Service Tax Appellate Tribunal, Chennai. The petitioner above named filed the above C.M.A. against final order No.40080 of 2013 dated 27.02.2013 and the same may be treated as part and parcel of this affidavit.

28) The present appeal is filed challenging the Final Order No.40080 of 2013 dated 2013 dated 27.2.2013. In the meantime there is a delay of days in filing the appeal is occurred. The delay is neither wilful nor wanton but only due the fact that the above said proceedings periods are excluded the present appeal is in time. Hence the petitioner request this Honble Court may be pleased to condone the delay 199 days in filing the appeal. If the delay is not condoned the petitioner will be put to irreparable loss and untold hardship. It is relevant to state that the petitioner prosecuting the above cases on the bonafide belief that he will get a remedy before the lower authorities, however the petitioner efforts are went in vain."

24. In both the cases, we find that the plea for condonation of delay is not bona fide, but with the defiant intention to delay the process of recovery. We are constrained to dismiss both the petitions with cost.

25. Learned counsel appearing for the petitioner persuaded this Court to accept his plea that there was bona fide in this case, but from the narration of facts as above, we find that the conduct of the petitioner in the Original proceedings, before the Tribunal and before this Court is one of deliberate defiance only to delay the process of adjudication and recovery. The valuable time of the Adjudication Authority and the Tribunal has been wasted in the Miscellaneous petition without any just or reasonable cause to serve the ends of the petitioner who did not choose even to file a reply to the show cause notice issued at the first instance at any point of time.

26. We are pained to note that the details of the various proceedings that has been recorded by the Adjudicating Authority, which we have already extracted, give us no other choice except to dismiss both the petitions and impose cost on the petitioner. Taking note of the quantum of duty and penalty and interest and the number of years of litigation, we are inclined to impose a cost of Rs.1.00 lakh. The learned counsel pleaded several times to reconsider the quantum of cost. We heed to his persuasion but only to an extent. The cost, therefore, shall be Rs.50,000/- (Rupees Fifty Thousand only).

27. In the light of the above, the above two petitions filed for condonation of delay in filing the appeals are dismissed. Accordingly, the above two appeals are also dismissed in the SR stage itself with a cost of Rs.50,000/- (Rupees Fifty Thousand only), to be paid to the Department within a period of two weeks from the date of receipt of a copy of this order.