2016 (10) TMI 343 - AT - Central Excise

Period of limitation - the appellant had received the order of the adjudicating authority on 17.12.2008 and the appeal was to be filed within 60 days before the Commissioner (Appeals), i.e. on or before 15.2.2009, but the same has been filed on 16.2.2009 - last day of filing appeal i.e. 15.2.2009 being Sunday, the appeal filed on 16.2.2009 - whether the appellant was justified in holding that the last day of filing appeal being Sunday the appeal filed on next day is not hit by limitation bar? - Held that - the statutory period for the appeal as per Section 35(1) ibid expires on 15.2.2009, which was a Sunday. Section 10 of the General Clauses Act, 1897 deals with the situation where the last date of filing the appeal is being Sunday, then the next working day shall be the last date for filing the appeal. As the last date of filing the appeal was 15.2.2009 being Sunday, the appeal would have to be filed by 16.2.2009. As the appeal has been filed on 16.2.2009, the appeal is filed within the period of limitation of 60 days and the delay is condonable - matter remanded back to the Commissioner (Appeals) to pass order on merits after giving an opportunity of being heard to the appellant - appeal disposed off.

Summary

Issues:
- Appeal dismissed for being filed beyond the period of limitation without condonation of delay application.

Analysis:
1. The appellant filed an appeal against the order of the Commissioner (Appeals) dismissing it due to a delay in filing without any condonation application. The order was received on 17.12.2008, and the appeal was to be filed by 15.2.2009, within 60 days as per Section 35(1) of the Central Excise Act. However, the appeal was filed on 16.2.2009, leading to the dismissal by the Commissioner (Appeals) based on the delay.

2. The appellant argued that since 15.2.2009 was a Sunday, the appeal was filed on the next working day, 16.2.2009, falling within the 60-day period. The appellant cited judgments like Indian Seamless Steel and Alloys Ltd. Vs. UOI and others to support their stance that the appeal was filed within the prescribed time limit despite the Sunday issue.

3. The respondent contended that the appeal was time-barred, emphasizing a delay of one day without any condonation application. The respondent referred to the judgment of the Supreme Court in Raja Mechanical Co. (P) Ltd. Vs. CCE, Delhi-I to support their argument regarding the dismissal of the appeal due to being time-barred.

4. Upon examination, it was noted that as per Section 10 of the General Clauses Act, when the last day for filing an appeal falls on a Sunday, the next working day becomes the deadline. Since 15.2.2009 was a Sunday, the appeal filed on 16.2.2009 was within the statutory 60-day limit. The delay was deemed condonable, overturning the previous decision and remanding the matter to the Commissioner (Appeals) for a new decision on the merits after providing the appellant with a hearing opportunity.

5. The appeal was disposed of by remand based on the finding that the appeal was filed within the period of limitation, and the initial dismissal for being time-barred was set aside. The legal provisions and precedents were carefully considered to arrive at this decision, ensuring justice and adherence to statutory timelines.