2013 (11) TMI 622 - AT - Central Excise

Appeal time barred - Condonation of Delay Delay of 101 days - Waiver of Pre-deposit -Held that - Commissioner (Appeals) has rejected the appeal of the appellant on the ground of time bar by holding that he has no powers to condone the delay of 101 days Following Singh Enterprises vs. CCE, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA - Prima facie the appeal filed by the assessee before Commissioner (Appeals) was barred by limitation and he has rightly held the same to be so - the applicant directed to deposit the entire duty amount of pre-deposit upon such submission rest of the duty to be waived till the disposal stay not granted.

Summary

Issues Involved:
1. Time bar for filing appeal before Commissioner (Appeals) and the power to condone delay.
2. Dispute regarding the date of completion of service for the purpose of calculating the limitation period.

Issue 1: Time bar for filing appeal before Commissioner (Appeals) and the power to condone delay:

The judgment revolves around the issue of the time bar for filing an appeal before the Commissioner (Appeals) and the authority's power to condone any delay in such filings. The appellant sought to dispense with the condition of pre-deposit of Cenvat credit confirmed against them along with a penalty. The Commissioner (Appeals) rejected the appeal, citing it as time-barred and lacking the power to condone the delay of 101 days. The judge referred to established legal principles, including a Supreme Court decision in the case of Singh Enterprises vs. CCE, Jamshedpur, to analyze the matter. The dispute primarily focused on determining the factual position regarding the date of completion of service, whether it was when the order was affixed on the factory gate or when it was procured by the appellant from the Revenue. The judge found that the appeal was likely barred by limitation, as the order was affixed on the factory gate and attempts to serve it at the residential address were unsuccessful. Consequently, the judge directed the appellant to deposit the entire duty amount within eight weeks, with the pre-deposit of interest and penalty waived and their recovery stayed during the appeal's pendency.

Issue 2: Dispute regarding the date of completion of service for the purpose of calculating the limitation period:

The second issue in the judgment pertains to the dispute over the date of completion of service for calculating the limitation period for filing an appeal. The judge noted that the order was affixed on the factory gate as per the provisions of Section 37C of the Central Excise Act. Additionally, attempts were made to serve the order to individuals at the factory premises, which were refused. The order was also sent to the residential address of the company's Director but was refused there as well. Based on these facts, the judge opined that the appeal filed by the assessee before the Commissioner (Appeals) was likely barred by limitation. The judge's analysis focused on the various attempts made to serve the order and the significance of the date of affixation on the factory gate in determining the start of the limitation period. This issue was crucial in determining the validity of the appeal and the subsequent directions given by the judge regarding the deposit of duty amount and the waiver of interest and penalty during the appeal process.

This comprehensive analysis of the judgment delves into the intricate legal issues surrounding the time bar for filing appeals and the significance of the date of completion of service in determining the limitation period, providing a detailed understanding of the case and its implications.