2013 (12) TMI 78 - HC - Central Excise

Time-barred appeal pending or not - Non-maintenance of separate account under Rule 57CC of the Central Excise Rules, 1944 - Modvat Credit took on various inputs - Final products Dutiable as well as exempted products - Whether a time barred appeal can be said to be pending and pendency can be negated on the ground that it was filed beyond time Held that - The findings have been recorded by the Tribunal that the date of receipt of the order i.e. 13th August, 2003 has to be accepted - The appeal was filed by same person - The findings recorded by the Commissioner as well as the Tribunal that the appeals were barred by time are based on consideration of all relevant materials - Relying upon Commissioner of Income Tax, Rajkot vs. Shatrusailya Digvijaysingh Jadeja 2005 (9) TMI 362 - SUPREME COURT OF INDIA - The proposition is undisputed that even if appeal is filed beyond time, the appeal is to be treated as an appeal pending and merely because the appeal is beyond time, it cannot be treated as no appeal - there is no power with the Commissioner to condone the delay beyond one month after expiry of two months - when appeal is filed before the Appellate Tribunal it had jurisdictional power to set aside an order of Commissioner Central Excise Appeals including an order rejecting the appeal as barred by time. Rule 57CCC does not refer to pendency of appeal or revision rather it uses a word of wider connotation i.e. a dispute - The word dispute clearly encompass within it a pendency of any litigation or claim of one party against the department - the adjudication order passed by adjudicating authority directing for payment of duty was disputed by filing an appeal - When an order passed by the adjudicating authority is challenged by an aggrieved party he is obviously disputing the order and his action of filing a time barred appeal either before Commissioner Central Excise (Appeals) or before the Tribunal has to be treated as raising a dispute and appeal before the CESTAT pending on the relevant date, it has to be accepted that the dispute was pending on the relevant date. The very basis of contention to knock out the application submitted by the petitioner under Rule 57CCC is unfounded - the application dated 2.7.2010 filed by the petitioner to take benefit under section 69(2) of the Finance Act, 2010 read with Rule 57CCC cannot be said to be non entertainable on the ground that no dispute was pending on the relevant date i.e. on 8.5.2010 - the writ petition is disposed of with a direction to the respondent no. 2 to consider the application dated 2.7.2010 submitted on 5.7.2010 by the petitioner under section 69(2) of the Finance Act 2010 read with Rule 57CCC of the Rules Decided in favour of Petitioner.

Summary

Issues Involved:
1. Whether the appeal filed before the Commissioner of Central Excise (Appeals) under Section 35 of the Act 1944 beyond the period of limitation should be treated as non est.
2. Whether a time-barred appeal filed before the Tribunal can be treated as pending on the date the Finance Act, 2010 received the assent of the President.
3. Whether the pendency of a time-barred appeal before the Tribunal can be treated as the pendency of a dispute within the meaning of Rule 57CCC.

Detailed Analysis:

Issue 1: Non Est Appeal
The Court examined whether the appeal filed beyond the statutory period of limitation should be treated as non est. The petitioner's appeal was filed in 2004 against the adjudicating authority's order dated 24th February 2000, which was beyond the permissible period. The Commissioner of Central Excise (Appeals) dismissed the appeal on 19th January 2006 as time-barred. The Tribunal upheld this decision, noting that the Commissioner (Appeals) had no jurisdiction to condone the delay beyond 30 days after the expiry of the initial 60 days. The appeal was subsequently dismissed by the Division Bench of the High Court.

Issue 2: Pending Appeal on Assent Date
The Court considered whether the time-barred appeal before the Tribunal could be treated as pending on 8th May 2010, the date when the Finance Act, 2010 received the President's assent. The Court referred to various judgments, including Mela Ram and Sons vs. Commissioner of Income Tax, which established that an appeal filed beyond the period of limitation is still an appeal in the eye of the law and an order dismissing it as time-barred is one passed in appeal. The Court concluded that the appeal before the Tribunal, even though barred by time, was pending on the relevant date.

Issue 3: Pendency of Dispute under Rule 57CCC
The Court analyzed whether the pendency of a time-barred appeal before the Tribunal could be treated as the pendency of a dispute under Rule 57CCC. The Court noted that the term "dispute" encompasses any litigation or claim asserted by one party and denied by another. The Court held that the appeal before the Tribunal, pending on the relevant date, signified a pending dispute. The Court cited several precedents, including Commissioner of Income Tax, Rajkot vs. Shatrusailya Digvijaysingh Jadeja, which supported the view that an appeal, even if filed beyond the limitation period, should be treated as pending for the purposes of the scheme.

Conclusion:
The Court concluded that the application dated 2nd July 2010 filed by the petitioner under Section 69(2) of the Finance Act, 2010 read with Rule 57CCC was maintainable. The Court directed the respondent to consider the application on its merits within three months from the date of filing a certified copy of the order. The Court clarified that it did not examine the merits of the petitioner's claim in the application.