2014 (6) TMI 786 - AT - Central Excise

Condonation of delay - Appeal not filed in proper format - Held that - appellant had filed the appeal before Commissioner (Appeals) on 29-7-2009, a copy of which is annexed to the present appeal at page No. 44 of the appeal paper book. Ongoing through the same, I find that it was received by the office of Commr. (Appeals) on 29-7-2009. The appellant had filed the appeal along with stay application, but not in the proper format, as prescribed for filing the appeal. However, it is not in dispute that the Department has received the said appeal memorandum and acknowledged the same on 29th July, 2009. No defect memo was issued to the appellant till May, 2010. Pursuant to the defect memo dated 31-5-2010, the applicant had filed the appeal in proper format on 17-6-2010. In these circumstances the date of filing of the initial appeal i.e. 29th July, 2009 be considered as the appeal for the purpose of Section 35A of CEA, 1944 and defects removed thereafter cannot be considered as the date of filing of the appeal before the office of Commissioner, Central Excise (Appeals). Thus, there is no delay in filing appeal before the ld. Commissioner (Appeals). Also, I find that the ld. Commr. (Appeals) has not decided the appeal on merit. In these circumstances, the case is remitted to the ld. Commr. (Appeals) for deciding the issue afresh - Decided in favour of assessee.

Summary

Issues:
1. Waiver of pre-deposit of duty and penalty under Section 11AC of the CEA, 1944.
2. Dismissal of appeal by ld. Commr. (Appeals) due to delay in filing.
3. Proper format requirement for filing appeal under Section 35A of CEA, 1944.
4. Consideration of appeal filing date and removal of defects.
5. Remittal of the case to ld. Commr. (Appeals) for fresh decision.

Analysis:

1. The application sought waiver of pre-deposit of duty and penalty under Section 11AC of the CEA, 1944 amounting to Rs. 2,29,917/-.

2. The appeal was dismissed by the ld. Commr. (Appeals) citing delay in filing beyond the condonable period of 30 days. The appellant argued that the appeal was filed on 29-7-2009 after receiving the Order-in-Original on 4-6-2009, and later refiled in proper format on 17-6-2010 upon Department communication, claiming no delay on their part.

3. The ld. A.R. for the Revenue contended that the appeal should have been filed in proper format within the prescribed time under Section 35A of CEA, 1944, with the date of appeal reckoned from the filing in proper format.

4. The Tribunal found that the initial appeal was filed on 29-7-2009, acknowledged by the Department, but not in the proper format. The appellant rectified the defects on 17-6-2010 after a defect memo, with no delay in filing the appeal. The date of the initial appeal was considered for Section 35A purposes, and the case was remitted to the ld. Commr. (Appeals) for a fresh decision without a merit-based ruling.

5. The Tribunal allowed the appeal by remand, directing the ld. Commr. (Appeals) to decide the issue afresh, granting both parties an opportunity for hearing and evidence submission. The case was disposed of accordingly.

This judgment highlights the importance of procedural compliance in filing appeals, the significance of rectifying defects promptly, and the authority's duty to decide cases on their merits.