Hon’ble Ashok Bhushan, J.—The Central Excise Appeal Defective No. 402 of 2005 has been heard alongwith Central Excise Reference No. 11 of 2004. Central Excise Reference No. 11 of 2004 arose out of Central Excise Reference Application Defective No. 11 of 2001 which case was directed to be listed alongwith Central Excise Reference No. 11 of 2004 by order dated 8th November, 2010. The above central excise appeal as well as central excise reference and central excise reference application are being decided by this common judgment.

2. We have heard Sri S.P. Kesarwani, learned counsel appearing for the department and Sri V.K. Upadhya, Senior Advocate, assisted by Sri Ritvik Upadhya for M/s Eco Products India Pvt. Ltd. (hereinafter referred to as the assessee).

3. There is delay of 99 days in filing the Central Excise Appeal Defective No. 402 of 2005 for condonation of which Civil Misc. (Delay Condonation) Application No. 249294 of 2005 has been filed by the appellant, which is supported by affidavit of D.S. Chaubey.

4. In the affidavit filed in support of the application for condonation of delay, it has been stated that on 24th May, 2005 the papers with the instruction for filing appeal has been received in the office of the Assistant Solicitor General of India. The summer vacation started thereafter, hence appeal could be prepared on 29th July, 2005 and two copies of the drafted appeal were sent to the appellant for effecting service on the respondent. On 9th August, 2005 the appeal was received after verification of the Notary but there was certain defect pertaining to signature and the same was again sent to rectify the mistakes. Thereafter the appeal could be received back on 4th September, 2005 and after verification it was revealed that in the affidavit although certain additions were made but the same were not initialed/verified by the Notary, hence it was sent again for removing the defect. The appeal was submitted on 30th November, 2005 for reporting and after reporting it was presented on 13th December, 2005. A counter-affidavit to the delay condonation application has been filed by the assessee alleging that although instruction to file appeal was received well within time but the appeal was filed with deliberate delay which is due to gross negligence of the persons entrusted with the job.

5. The reasons given in the affidavit explaining the delay are bona fide and the delay was due to error and mistakes which took place in finalising the draft and it cannot be said that the appellant was negligent in filing the appeal. Sufficient grounds have been made out to condone the delay in filing the appeal. The delay in filing Central Excise Appeal Defective No. 402 of 2005 is condoned. The delay condonation application is allowed.

6. The facts giving rise to central excise reference application, central excise reference and central excise appeal may now be noted in chronological order.

7. M/S Eco Products India Pvt. Ltd., the assessee, was engaged in the manufacture of water filter and part thereof falling under Chapter Heading No. 8421.10 and 8421.90 of the Schedule to Central Excise Tariff Act, 1985. A show-cause notice dated 30th May, 1997 was issued to the assessee alleging that the assessee had incorrectly availed the exemption under the Notification No. 01/93 dated 28.2.1993 as amended and thereby short paid central excise duty amounting to Rs. 1,05,455.60 on the goods cleared during November, 1996 to March, 1997. The assessee was alleged to have availed the benefit of concessional rate of duty in terms of the above notification in respect of clearance of excisable goods manufactured by them affixing with brand name “AQUARIUS” which appeared to be brand name owned by M/s Singer India Limited. The assessee had appointed M/s Singer India Limited as their exclusive distributor for product. The Assistant Commissioner, Central Excise adjudicated the show-cause notice and passed an order on 28th November, 1997 confirming