JUDGMENT By the Court.—Heard Shri Nishant Mishra, learned counsel for the appellant and Shri Ramesh Chandra Shukla, learned counsel for the respondents. 2. This Central Excise Appeal was admitted under the order dated 23.1.2014 on the following grounds : “C. Whether the Appellate Tribunal is right in law in disallowing the Condonation of Delay application filed by the Appellant vide the impugned order when the Appellant has given reasons which indicate there are no mala fide reasons or dilatory tactics involved in delay caused by the Appellant? D. Whether the Appellate Tribunal is right in law in disallowing the Condonation of Delay application filed by the Appellant vide the impugned order when the rulings of the Hon’ble Apex Court as well as this Hon’ble Court has categorically stated that a liberal view needs to be taken while condoning delay?” 3. From the record of the present appeal we find that the Joint Commissioner (Adjudication) Central Excise Allahabad has passed the following assessment order against the assessee : “ORDER 1. I hereby confirm the demand of the service tax amounting to Rs. 27,54,543/- (Rs.27,00,533/- Service Tax + Rs. 54,000/- Education Cess) as service tax under the provision of Section 73(2) of the Finance Act, 1994 against the party alongwith interest under the provisions of Section 75 of the Finance Act, 1994 as amended from time to time. This amount is held to be recoverable from the party. 2. I impose penalty of Rs. 5,000/- under Section 77 of the Act for violation of Section 70 read with Rule 7 of the Rules. 3. I impose penalty of Rs. 27,54,543/- under Section 78 of the Finance Act, 1994. However, penalty imposed under this Section shal stand reduced to 25% of the Service Tax amount if the entire dues including Service Tax, Interest and penalties imposed as above are paid within 30 days from receipt of this order. Sd/- (Somesh Tiwari) Joint Commissioner (Adj.) Central Excise : Allahabad” 4. It is the case of the petitioner that the amount of service tax alongwith interest have been deposited in terms of the order of the Joint Commissioner. 5. Against the order of the Assessing Officer the appellant filed an appeal before the Commissioner (Appeals), which appeal came to be dismissed under the order dated 27.2.2012 and the adjudication order was confirmed. 5. Against the order of the Assessing Officer the appellant filed an appeal before the Commissioner (Appeals), which appeal came to be dismissed under the order dated 27.2.2012 and the adjudication order was confirmed. Against the first appellate authority’s order dated 27.2.2012 the assessee preferred an appeal before the Customs Excise and Service Tax Appellate Tribunal, New Delhi. As there was some delay in filing of the second appeal, therefore, the assessee made an application under Section 5 of the Limitation Act for condonoing the delay in filing of the second appeal. The explanation furnished for the delay in filing of the appeal was that the order of the Joint Commissioner was received by the active partner Shri Anil Singh, who due to lapse of memory, forget about the order as result a of which the appeal could not be filed within time. It is only when a recovery letter was received from the Revenue that the order could be traced out and the appeal has been preferred. 6. The Tribunal under the order impugned has recorded that the explanation furnished by the assessee was not satisfactory and, therefore, it has proceeded to dismiss the appeal as barred by limitation, after rejecting Section 5 application. 7. Counsel for the assessee points out that the averment made in the affidavit qua lapse of memory of the acting partner Anil Singh, were not controverted and, therefore, there was no reason for the Tribunal to have not accepted the statement made on oath on behalf of the assessee. Even otherwise, it is submitted that the Apex Court in the case of N. Balakrishnan v. M. Krishnamurthy, 2008 (228) ELT 162 (SC), has specifically held that if the explanation furnished does not smack of mala fide or it is not put forth as a part of dilatory tactics, the Court must show utmost consideration to the suitor. It has further been held that the length of delay is not the relevant factor, the cause of delay must be examined. Lastly, it has been held by the Apex Court that the rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. 8. Lastly, it has been held by the Apex Court that the rules of limitation are not meant to destroy the rights of the parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly. 8. The assessee has already deposited the entire service tax and is ready and wiling to deposit 25% of the penalty in terms of the order of the Assessing Authority, therefore, it would in the interest of justice to require the Tribunal to condone the delay and decide the appeal on merit. Counsel for assessee also submits that he shall furnish security for the balance of amount of penalty in terms of the order of the Assessing Authority within reasonable time, which may be other than the cash or Bank guarantee. 9. Counsel for department, however, disputed the contention raised and submitted that the explanation furnished by the assessee is flimsy and the Tribunal has rightly not accepted the same. 10. Heard counsel for the parties and perused the material available on record. 11. From the order of the Tribunal, we find that there is no allegation of mala fide against the petitioner. It has not been recorded that the delay has been caused deliberately as a part of dilatory tactics on behalf of the assessee. 12. It has been held by the Apex Court in the case of N. Balakrishnan (Supra) that rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. 13. In view of facts on record of this case, we are of the considered opinion that the petitioner may be put to terms for the delay in filing of the appeal and thereafter, the Tribunal be asked to decide the appeal on merits. 14. We, therefore, direct that the petitioner shall deposit 25% of the penalty in cash within two weeks from today and shall furnish security other than cash or Bank guarantee for the remaining 75% penalty amount to the satisfaction of the Assessing Officer within two weeks, thereafter. If this is done by the petitioner the Appeal No. 56810 of 2013 shall stand restored to its original number and shall be heard and decided on merits. If this is done by the petitioner the Appeal No. 56810 of 2013 shall stand restored to its original number and shall be heard and decided on merits. Delay in filing of the second appeal stands condoned, on fulfillment of conditions mentioned above. 15. In the result the present appeal is allowed and the order of the Tribunal is modified to the extent indicated above. ——————