2016 (7) TMI 496 - HC - Central Excise

Delay in filing an appeal before Commissioner (Appeals) - Determination of period of limitation - Held that - the petitioner had challenged the order-in-original dated 29.08.2013 which came to be corrected and amended by virtue of corrigendum issued by the competent authority on 29.11.2013. It was only then that the period of limitation would start to run against the petitioner. The conclusion of the Commissioner that the petitioner s appeal was beyond such total period of 90 days is not borne out from the record. Counting from the date of corrigendum 29.11.2013, the petitioner s appeal which was filed on 17.02.2014 was well within the period of 180 days and, in other words, beyond the statutory period of 60 days for filing appeal. Petitioner s appeal was belated barely about 19 days. The explanation rendered by the petitioner was perfectly valid and delay ought to have been condoned. In the result, the petition is allowed. Impugned order dated 18.11.2015 passed by the Tribunal as well as dated 20.06.2014 passed by the Commissioner are set aside. The petitioner s appeal is restored to the Commissioner (Appeals) after condoning delay. - Decided in favor of petitioner.

Summary

Issues:
Challenge to order rejecting application for condonation of delay and confirming Commissioner's order.

Analysis:
The petitioner challenged an order by CESTAT rejecting their application for condonation of delay and confirming the Commissioner's order. The petitioner, a manufacturing unit, received an order-in-original in 2013 confirming a duty demand. Subsequently, a corrigendum was issued amending the original order. The petitioner filed an appeal beyond the 60-day limit, citing difficulties in file clearance and a strong case on merits. The Commissioner (Appeals) rejected the appeal as time-barred, leading to an appeal to CESTAT. Despite a 78-day delay in filing the appeal, the Tribunal rejected the condonation application. The High Court noted that the limitation period should start from the corrigendum date, not the original order. The Commissioner's belief that the appeal was 118 days beyond limitation was unfounded. The petitioner's appeal, filed within 180 days of the corrigendum, was only 19 days late, warranting condonation.

The High Court considered two options: condoning the delay and remanding the case to the Tribunal or striking down the Commissioner's order on condonation and avoiding further litigation. Opting for the latter, the Court set aside the Tribunal and Commissioner's orders, restoring the appeal to the Commissioner for a merit-based hearing. The Court dismissed the department's reliance on a case regarding the principle of merger, finding it inapplicable to the present matter. Ultimately, the petition was allowed, and the impugned orders were overturned, directing the Commissioner to hear the appeal on its merits.