1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO. 73 OF 2009 M/s. Nasik Strips Pvt. Ltd. ... Appellant Versus Union of India and Ors. ... Respondents Mr. V.M. Doiphode with Mr. S.P. Mathew i/by M/s. V.M. Doiphode & Co. for Appellant. Mr. R.V. Desai, Sr. Advocate with Mr. R.B. Pardeshi for Respondents. CORAM : F.I. REBELLO & A.M. KHANWILKAR, JJ. DATED : OCTOBER 06, 2009 P.C. The appellant has approached this court as the appeal preferred before the tribunal against the order dated 7.2.2007 and the application for condonatioin of delay were dismissed. The learned tribunal found that sufficient cause has not been shown in the application for condonation of delay and accordingly dismissed the application and consequently appeal. In the light of that present appeal raised the following substantial question of law: “Whether in the facts of this case, the findings of the Tribunal that from 31st July, 08 onwards there is absolutely no explanation regarding the delay in filing the appeals is 2 perverse exhibiting total non application of mind?” A few facts may be set out : A show cause notice was issued to Petitioner on 29.12.2005. During the pendency of the proceedings before the A.O. the appellant applied on 16.3.2007 before the Settlement Commission. The appellant received copy of the order passed by the A.O. on 7.4.2007. The Settlement Commission considering that the application already been filed inspite of the order passed by the A.O. Was pleased to proceed with the application and ultimately passed the order. That order was subject matter of Writ Petition before this court being W.P. No. 1773 of 2008.The learned Bench of this court was pleased to treat the application filed by the Petitioner as withdrawn. A submission was made on behalf of the Petitioners herein that they have no objection to revenue retaining the amount that was deposited before the filing of the application. Thereafter it appears that on 25.9.2008 and till the filing of the appeal on 16.2.2009, correspondence ensued between the Petitioner at the one hand and respondent on the other. When application for condonation of delay came up for hearing, the leaned appellate tribunal was of the opinion that the delay between 31.7.2008 and filing of the appeal on 16.2.2009 has not been properly explained and no sufficient cause shown and in these circumstances, dismissed the application. The law now as settled in the matter of condonation of delay is to pose a 3 question namely whether the appellant was interested in prosecuting the matter. In the instant case, we find that by filing of the settlement application, the Petitioner in fact was prosecuting the matter. On being aggrieved by the order of the settlement commission, the Petition came to be filed before this court. The order of the settlement commission was set aside on the application itself being allowed to be withdrawn. Thereafter the appellant has been in correspondence with the respondents. Once the application was rejected, it is the appellate forum under the act which had jurisdiction. This to our kind would indicate that the Petitioner was interested in prosecuting the matter. In these circumstances, at the highest the Tribunal could have saddled hte Appellant with costs. In the light of the above, the impugned order dismissing the application for condonation of delay are consequently set aside as the Appellant had shown sufficient cause as also the order passed on application for waiver of pre- deposit. Delay is condoned. The appeal along with application to be considered on its own merits subject to the appellant herein paying to the respondents cost quantified in the sum of Rs. 10,000/- within four weeks from today. (A.M. KHANWILKAR,J.) (F.I. REBELLO,J.)