2007 (8) TMI 522 - AT - Central Excise

Summary

Issues:
Challenge to order of Commissioner (Appeals) as time-barred.

Analysis:
The appellant challenged the order of the Commissioner (Appeals) dismissing the appeal as time-barred. The appellant filed the appeal against the adjudicating authority's order within the prescribed period, dispatching it via courier on 28-3-2000. However, due to postal delay, the appeal reached the Commissioner's office after the deadline of 31-3-2000, resulting in a delay of five days, which was not disputed. The appellant applied for condonation of delay before the scheduled hearing date of 5-8-2004, explaining the circumstances. The application cited Supreme Court and Tribunal decisions in support. The Commissioner (Appeals) issued multiple notices for personal hearings, but the matter of condonation was not addressed until a notice on 4-5-2005 set a hearing for 12-5-2005. An additional application on 10-5-2005 requested an adjournment due to a pending related appeal, which was to be transferred to another office. The Commissioner (Appeals) dismissed the appeal as time-barred, citing the late condonation application and questioning the proof of dispatch date based on the courier receipt. The Commissioner (Appeals) also declined to consider the adjournment request on its merits.

The appellant argued that the Commissioner (Appeals) erred in disregarding the courier receipt, which, when considered alongside the condonation application, clearly demonstrated dispatch on 28-3-2000. The appellant's statements in the application were unchallenged by the Revenue, supporting the dispatch date claim. The appellant emphasized that no other papers were dispatched via courier on that date, reinforcing the appeal's dispatch. The Commissioner (Appeals) failed to acknowledge the cogent reasons provided in the 10-5-2005 communication seeking an adjournment, which was unjustly dismissed as an "other ground." The appellant contended that the delay of five days warranted condonation, as the appellant acted promptly upon receiving the order. The Tribunal found the Commissioner (Appeals) took a narrow view and remanded the case, directing a fresh hearing considering the condonation application and the request for adjournment.

In conclusion, the Tribunal set aside the impugned order, emphasizing the need to condone the minor delay in filing the appeal. The Commissioner (Appeals) was instructed to hear the appeal on its merits and consider the adjournment request made in the communication dated 10-5-2005. The appeal was allowed by way of remand, ensuring a fair review of the case.