2012 (1) TMI 122 - AT - Central Excise

Waiver of pre-deposit of duty, interest and penalty - Bar of limitation - Held that - Section 9 of the General Clauses Act, provides that for commencement and limitation of time, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word from and for the purpose of including the last in the series and days to use the to . The provisions of Section 35 of the Central Excise Act provides that appeal is to be filed within 60 days from the date of communication of the adjudication order. In view of the above provisions, we find that the limitation starts from 21-8-2010. Hence, the impugned order passed by the Commissioner (Appeals) dismissing the appeal as time-barred is not sustainable. Hence, set aside the impugned order and the matter is remanded to the Commissioner (Appeals) after waiving the pre-deposit of dues - Decided in favour of assessee.

Issues Involved:
1. Appeal dismissal as time-barred by Commissioner (Appeals) and waiver of pre-deposit of duty, interest, and penalty.

Analysis:
The applicant filed an application for waiver of pre-deposit of duty, interest, and penalty after the appeal was dismissed by the Commissioner (Appeals) as time-barred. The applicant contended that the appeal was dismissed on the grounds of being time-barred due to a delay in filing. However, the applicant argued that the appeal was filed within the time prescribed under Section 35 of the Central Excise Act, as the limitation period starts from the date of communication of the adjudication order. The applicant also pointed out that the Commissioner (Appeals) has the power to condone a further delay of 30 days in filing the appeal upon showing sufficient cause. The applicant mentioned that during the arguments, the Commissioner (Appeals) did not raise the issue of time-bar, making the impugned order unsustainable.

The Revenue's contention was that since the appeal was dismissed as time-barred, the applicant was required to deposit the disputed amount. However, the Appellate Tribunal found that the Commissioner (Appeals) had erred in dismissing the appeal as time-barred. The Tribunal referred to Section 9 of the General Clauses Act, which provides for the exclusion of the first day in a series of days and the inclusion of the last day. The Tribunal noted that according to Section 35 of the Central Excise Act, the appeal must be filed within 60 days from the date of communication of the adjudication order. Therefore, the limitation period should start from the day after the communication of the order. Consequently, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) after waiving the pre-deposit of dues. The Tribunal allowed the application for waiver of pre-deposit after providing an opportunity of hearing to the appellant, and disposed of the appeal by way of remand.

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