IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.03.2011 Coram THE HON’BLE MR. JUSTICE VINOD K.SHARMA W.P.No.16534 of 2002 Commissioner of Central Excise Chennai-II Commissionerate Chennai-35 .. Petitioner .. Vs .. 1. Customs, Excise & Gold (Control) Appellate Tribunal South Zonal Bench at Chennai Shastri Bhawan Annexe Buildings 1st floor 26, Haddows Road, Chennai-600 006 2. M/s. Shasun Chemicals & Drugs Ltd., No.3, Doraiswamy Road T.Nagar, Chennai-600 017 ... Respondents Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus in the nature of writ calling for the entire records connected with the impugned order in Final Order No.1902/2001 dated 8.11.2001, passed by 1st respondent and quash the same and to direct the 1st respondent to hear the Appeal No.E/695/2001 filed by the Revenue on merits. For Petitioner : Mr.P.Mahadevan, SCCG For Respondents : No Appearance O R D E R The Commissioner of Central Excise, Chennai has approached this Court, with a prayer for issuance of a writ in the nature of Certiorari to quash the order passed by Customs, Excise & Gold (Control) Appellate Tribunal South Zonal Bench at Chennai (herein after called the Tribunal) dismissing the appeal, filed against order passed by Commissioner of Central Excise (appeals) 2. It is not in dispute that the petitioner being aggrieved by the order passed by the Commissioner of Central Excise(Appeals), Chennai filed an appeal before the tribunal. The appeal was barred https://hcservices.ecourts.gov.in/hcservices/ by 133 days. The only ground taken for condonation of delay was that inadvertently there was some delay in filing the appeal in respect of the impugned order. It was also pleaded that the issue involved in the order is pending adjudication therefore, appeal will be admitted by condoning the delay. 3. The learned Tribunal by placing reliance on the judgment of Hon'ble Supreme Court in Union of India vs. Tata Yodogawa Limited 1988 (38) E.L.T. 739 (S.C.) held that inadvertent delay. Without showing sufficient cause cannot be a ground for condoning the delay. It is well settled in law that though courts are liberal in condoning the delay in the cases filed by the Government Department, but still explanation is required to be given to make out sufficient cause for condoning the delay. 4. The delay in this case is 133 days, and nothing has been disclosed as to where the delay occurred in taking the decision to file appeal. The only reason given was that the delay occurred inadvertently. 5. Learned counsel for the petitioner vehemently contended that in R.C.P.No.8 of 1997, the Hon'ble Division Bench of this court has directed the Tribunal to frame the following question of law for adjudication by this court: "1. As to whether the Section 11 A of Central Excises and Salt Act, 1944 is excluded in cases of refund of MODVAT credit? and 2. Whether the Tribunal was correct in observing that Notification 85/87 dated 01-03- 1987 as amended issued in terms of Rule 57F(a) of Central Excise Rules, restricted the period for filing refund claim to that specified in Section 1B of CE & SA, 1944 without any reference to Section 11A for the purposes of demand of erroneous refund, and in concluding therefrom that the Section 11A cannot be invoked for demanding erroneous excess refund of MODVAT credit in terms of Setion 11A of CE & SA, 1944." The R.C.P.No.8 of 1997 is still pending in this court. Therefore, the delay be condoned as the matter sub judice. This cannot be a ground to interfere with the order passed by the learned Tribunal. When jurisdiction is vested with the Tribunal, and the appeal is dismissed as time barred, merely because appeal is pending for subsequent year cannot be a ground for condonation of delay. https://hcservices.ecourts.gov.in/hcservices/ 6. For the reasons stated there is no merit in this writ petition which is accordingly dismissed. No costs. Connected miscellaneous petition is closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar kpr To 1.Customs, Excise & Gold (Control) Appellate Tribunal South Zonal Bench at Chennai Shastri Bhawan Annexe Buildings 1st floor 26, Haddows Road, Chennai-600 006 2.The Commissioner of Central Excise Chennai-II Commissionerate Chennai-35. 1 cc to Mr.R.Karthikeyan, Advocate, Sr.No.15435 1 cc to Mr.P.Mahaadevan, Advocate, Sr.No.15878 W.P.No.16534 of 2002 SGL {CO} TP/28.3.2011. https://hcservices.ecourts.gov.in/hcservices/