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2015 (4) TMI 30 - CGOVT - Central ExciseCondonation of delay - Denial of rebate claim - there is difference In weight of goods as per ARE-1/Invoice and Shipping Bill/Bill of Lading - correlation of goods covered in excise documents and export documents could not be established - respondents claimed the rebate of goods exported having weight as mentioned in ARE-1 and genuineness of such export is proved - Held that - appeal was filed before Commissioner (Appeals) after a delay of 45 days and the said fact is not disputed by applicant. As per provisions of section 35B of Central Excise Act, 1944, Commissioner (Appeals) is empowered to condone delay upto 30 days in filing appeal. There is no provision in section 35B ibid to condone delay exceeding 30 days. Hon'ble Allahabad High Court in the case of M/s India Rolling Mills (P) Ltd. Vs. CESTAT, New Delhi 2004 (2) TMI 77 - HIGH COURT OF JUDICATURE AT ALLAHABAD has held that the Commissioner (Appeals) cannot. condone delay in filing appeals beyond 30 days. Government also notes that Hon'ble Supreme Court in the case of Singh Enterprises Vs. CCE Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA has also held that Commissioner (Appeals) is empowered to condone delay upto 30 days and has no power to allow appeal to be presented beyond the delay of 30 days. - appeal filed after a delay of 45 days was not maintainable and liable to be dismissed as time barred. Commissioner (Appeals) has erred in condoning the said delay exceeding 30 days. - Decided against Revenue.
Issues:
1. Rejection of rebate claim based on discrepancies in export documents. 2. Delay in filing appeal and condonation of delay. 3. Correlation of goods covered in excise and export documents. 4. Applicability of judgments regarding service of orders. Analysis: Issue 1: Rejection of Rebate Claim The original authority rejected the rebate claim due to discrepancies in the quantity of goods exported as per various documents. The Assistant Commissioner found that the actual quantity exported did not match the shipping bill, bill of lading, and excise invoices. Additionally, the duplicate copy of the excise invoice was not submitted. The rejection was based on the inconsistency in the quantity, weight, and description of the goods across different documents. The Commissioner (Appeals) later ruled in favor of the respondent, stating that the rebate claim for goods exported with the weight as mentioned in the ARE-1 was genuine. Issue 2: Delay in Filing Appeal and Condonation The applicant department filed a revision application citing delay in filing the appeal beyond the statutory limit of 30 days. The Commissioner (Appeals) had condoned a delay of 45 days in filing the appeal, which was challenged by the department. The government observed that the appeal was indeed filed after a delay of 45 days, which exceeded the permissible limit for condonation. Citing relevant case laws, the government concluded that the appeal filed after 45 days was time-barred and not maintainable. Issue 3: Correlation of Goods in Documents The government noted the discrepancy in the weight of goods as per the ARE-1, invoice, and shipping documents. While the Commissioner (Appeals) found the export to be genuine based on the weight mentioned in the ARE-1, the applicant department contested this decision due to the lack of correlation between the excise and export documents regarding the goods exported. Issue 4: Applicability of Judgments on Service of Orders The cross-objector raised concerns regarding the service of the order and cited relevant judgments on the dispatch of adjudication orders by speed post/registered post. They argued that without proof of actual delivery, the service could not be considered valid. The government noted the discrepancies in the dates of receipt mentioned by the parties and concluded that the appeal was filed after a delay of 45 days, which was beyond the statutory limit for condonation. In conclusion, the government set aside the order-in-appeal and allowed the revision application on the grounds of the appeal being time-barred. The impugned order-in-original was restored without delving into the merits of the case, emphasizing the importance of adhering to statutory timelines in legal proceedings.
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