JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (hereinafter referred to as "the learned tribunal") dated 17/04/2012 in Application No. E/S/308/11 by which the learned tribunal has rejected the application for condonation of delay in preferring the Appeal and consequently has rejected the Appeal and the stay application in the Appeal, the assessee has preferred the present Tax Appeal to consider the following substantial question of law; "Whether in fact and in law the learned tribunal committed an error in dismissing the appeal of the present appellant on the ground of delay particularly looking to the explanation rendered in the delay condonation application and the affidavits filed in support of such an application? 2. The facts leading to the present Tax Appeal in nutshell are as under; 2.1 The appellant is a proprietor of M/s. Reliance Airseas Services providing the services as CHA. The Department issued show cause notice dated 26/10/2007 to M/s. Shriram Tubes Pvt. Ltd., Ahmedabad alleging nonpayment of duty on the ground of illicit manufacture and clearance by it in clandestine manner in the guise of job work goods by availing ineligible CENVAT credit on the inputs without receipt of actual goods. The said show cause notice proposed to recover the duty on the goods manufactured, the ineligible CENVAT credit alongwith interest as applicable from the noticee besides proposing penalties under various provisions of law. The appellant herein was also included in the said show cause notice as co-noticee alleging that the appellant had issued bogus LRs enabling the main noticee to avail CENVAT credit fraudulently. The penalty was proposed on the appellant under Rule 26 of the Central Excise Rules, 2002 and Rule 13. The adjudicating authority passed Order-in-Original dated 03/02/2010 and imposed penalty of Rs. 17.25 lakhs upon the appellant. Being aggrieved and dissatisfied by the Order-in-Original imposing the penalty of Rs. 17.25 lakhs upon the appellant, the appellant preferred Appeal before the learned tribunal on 03/02/2011. Since there was delay of 365 days in filing the Appeal, the appellant submitted an application requesting to condone the delay. It was the case on behalf of the appellant in the delay condone application that the appellant was not aware of the Order-in-Original and imposing of the penalty upon him. Since there was delay of 365 days in filing the Appeal, the appellant submitted an application requesting to condone the delay. It was the case on behalf of the appellant in the delay condone application that the appellant was not aware of the Order-in-Original and imposing of the penalty upon him. However, during December, 2010 he received a letter from the Superintendent of Central Excise, Ahmedabad-I asking the appellant to pay Rs. 17.25 lakhs, the amount being penalty amount imposed upon him vide Order-in-Original dated 03/02/2010 and at that time the appellant came to know about the passing of the Order-in-Original. On receipt of the letter from the Superintendent of Central Excise, Ahmedabad-I he called Shri Vijay Singh, ex-employee asking him whether any such Order-in-Original was received and if so where is it. Thereafter, Shri Vijay Singh searched for the old records lying in the office and found the copy of the Order-in-Original and handed over the same to the appellant and immediately thereafter the Appeal came to filed on 11/02/2011. Thereafter, it was submitted that there was neither any negligence nor any deliberate delay on the part of the appellant, and therefore, it was requested to condone the delay. However, by the impugned order, the learned tribunal has refused to condone the delay and has rejected the Appeal as well as the stay application on the ground of limitation. Feeling aggrieved and dissatisfied with the impugned order passed by the learned tribunal in rejecting the application for condonation of delay and consequently rejecting the Appeal as well as the stay application on the ground of limitation, the appellant has preferred the present Tax Appeal with the aforesaid question of law. 3. Shri D.K. Trivedi, learned advocate appearing on behalf of the appellant has vehemently submitted that in the facts and circumstances of the case the learned tribunal has materially erred in not condoning the delay and consequently rejecting the Appeal on the ground of limitation. 3.1 It is vehemently submitted by Shri D.K. Trivedi, learned advocate appearing on behalf of the appellant that while passing the impugned order the learned tribunal has taken too hyper technical view. It is vehemently submitted that as such while passing the impugned order and not condoning the delay the learned tribunal has not properly appreciated and/or considered the grounds stated/submitted on behalf of the appellant while requesting to condone the delay. It is vehemently submitted that as such while passing the impugned order and not condoning the delay the learned tribunal has not properly appreciated and/or considered the grounds stated/submitted on behalf of the appellant while requesting to condone the delay. It is further submitted by Shri D.K. Trivedi, learned advocate appearing on behalf of the appellant that as such there was no other mala fide intention on the part of the appellant in not preferring the Appeal within the period of limitation. It is submitted that as such by not preferring the Appeal within the period of limitation, as such, the appellant was not going to be benefited. It is submitted that therefore the learned tribunal ought to have condoned the delay in preferring the Appeal by imposing reasonable cost. It is submitted by Shri D.K. Trivedi, learned advocate appearing on behalf of the appellant that as such against the Order-in-Original, Appeal/Appeals preferred by other co-noticee is/are pending before the learned tribunal. It is submitted that therefore on imposing reasonable cost the learned tribunal ought to have condoned the delay. Making the above submissions and relying upon the decision of the Hon'ble Supreme Court in the case of Improvement Trust, Ludhiana v. Ujagar Singh and Others reported in (2010) 6 SCC 786 , it is requested to allow the present Tax Appeal by quashing and setting aside the impugned order passed by the learned tribunal and consequently condone the delay in preferring the Appeal. 4. Shri Dhaval Vyas, learned advocate appearing on behalf of the revenue has tried to oppose the present Tax Appeal by submitting that in the facts and circumstances of the case when the learned tribunal has refused to condone the delay by giving cogent reasons and having not been satisfied with the cause shown by the appellant the learned tribunal has exercised the discretion judiciously, and therefore, it is requested to dismiss the present Tax Appeal. However, Shri Dhaval Vyas, learned advocate appearing on behalf of the revenue has fairly conceded that the Appeal/Appeals against the Order-in-Original at the instance of the co-noticee is/are pending before the learned tribunal. 5. We have heard the learned Advocates appearing on behalf of the respective parties at length. However, Shri Dhaval Vyas, learned advocate appearing on behalf of the revenue has fairly conceded that the Appeal/Appeals against the Order-in-Original at the instance of the co-noticee is/are pending before the learned tribunal. 5. We have heard the learned Advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that by the impugned order the learned tribunal has rejected the delay condonation application in preferring the Appeal, which was filed by the appellant herein against the Order-in-Original dated 03/02/2010 imposing the cost of Rs. 17.25 lakhs upon the appellant. 5.1 From the impugned order passed by the learned tribunal, it appears that the learned tribunal has taken too hyper technical view while rejecting the delay condone application. From the impugned order passed by the learned tribunal, it appears that as such the learned tribunal has not at all considered the grounds stated by the appellant, mentioned in the delay condonation application. However, considering the fact that the appellant was CHA and being a CHA the appellant was required to take due care and was supposed to know the law, the learned tribunal has refused to condone the delay. However, it appears that there does not appear to be any other mala fide intention on the part of the appellant in not preferring the Appeal within the period of limitation. As such, by not preferring the Appeal within the period of limitation, the appellant was not going to be benefited. Even otherwise, considering the fact that when against the Order-in-Original other Appeal/Appeals at the instance of the co-noticee is/are pending before the learned tribunal, the learned tribunal ought to have condoned the delay even on imposing reasonable cost. In the case of Ujagar Singh and Others (Supra) it is held that unless mala fides are writ large on conduct of the party, as a normal rule delay should be condoned. It is further observed that attempt should always be made to allow the matter to be contested on merits rather than throw it out on technicalities. In the case of Ujagar Singh and Others (Supra) it is held that unless mala fides are writ large on conduct of the party, as a normal rule delay should be condoned. It is further observed that attempt should always be made to allow the matter to be contested on merits rather than throw it out on technicalities. Considering the aforesaid facts and circumstances and the law laid down by the Hon'ble Supreme Court in the case of Ujagar Singh and Others (Supra) and from the conduct, behaviour and attitude of the appellant, it cannot be said that it had been absolutely callous and negligent in prosecuting the matter, for after it became aware of passing of the Order-in-Original, it prosecuted the matter with due diligence, and therefore, we are of the opinion that on imposing reasonable cost to be deposited with the Commissioner of Central Excise, which the appellant has agreed to pay to the Department, delay caused in preferring the Appeal be condoned. 6. In view of the above and for the reasons stated hereinabove, the present Tax Appeal is allowed and the impugned order passed by the learned tribunal against the Order-in-Original dated 03/02/2010 and consequently rejecting the Appeal on the ground of limitation is hereby quashed and set aside on condition that the appellant shall directly pay Rs. 15,000/- towards cost straightaway to be deposited with the Commissioner of Central Excise, Ahmedabad within a period of three weeks from today (as agreed by Shri Trivedi, learned advocate appearing on behalf of the appellant) and on such deposit, the present Tax Appeal is allowed. On such deposit of cost of Rs. 15,000/- with the Commissioner of Central Excise, Ahmedabad to be deposited within a period of three weeks from today, on production of receipt of such payment, the learned tribunal is directed to entertain the said Appeal and decide and dispose of the same in accordance with law and on its own merits, however, subject to compliance of any other requirement, if any, including the requirement of pre-deposit. The Appeal preferred by the appellant to be heard by the learned tribunal with Application No. E-643/2010, which is reported to have been preferred by the main assessee - Shriram Tubes Pvt. Ltd., which is still reported to be pending. 7. With this, the present Appeal is allowed to the aforesaid extent. /Department