2017 (7) TMI 51 - AT - Central Excise

Time limitation - power of Commissioner (appeals) to condone delay - Held that - The time taken from the date of receipt of the communication from Superintendent to the date of filing writ before the High Court is 19 days. Thereafter, the matter was subjudice and finally was decided by Hon ble Rajasthan High Court on 13th May 2009 when the writ petition was dismissed on the ground of alternative remedy, relegating the appellant to the process of appeal. Thereafter from such date, the appellant filed appeal before the Commissioner (Appeals) on 24/07/2009, which on computation comes to 71 days. Thus, the appellant have taken the total of 71 19, or 90 days in filing the appeal before the learned Commissioner (Appeals). During the relevant period, that is the year 1983 as the law stood then, the time allowed for filing appeal was 90 days and further 90 days condonation period was provided, which could be condoned by learned Commissioner (Appeals) on reasonable cause being shown. In this view of the matter, we hold that the learned Commissioner (Appeals) have erred in dismissing the appeal on the ground of limitation and we hold that the appeal was filed within the period of limitation. We find it fit and proper that the issue on merit regarding correct classification of the impugned product should be examined and decided afresh by the Jurisdictional Original Authority to whom we are remanding the matter. It is made clear that the appellants should be given adequate opportunity to submit their side of the case alongwith whatever supporting evidence they want to place - appeal allowed by way of remand.

Summary

Issues Involved:
1. Limitation for filing the appeal.
2. Merits of the classification of the product.

Detailed Analysis:

Limitation for Filing the Appeal:
The appellant contested the order-in-appeal dated 6th May 2011, which dismissed the appeal on the grounds of limitation. The appellant argued that the limitation should be computed based on the provisions as they stood in 1983. The relevant timeline is as follows:
- On 18/08/1983, the appellant received a letter from the Superintendent, Central Excise, informing them that the classification list had been approved under a higher tariff item, and they were asked to deposit the difference in duty.
- On 14/09/1983, the appellant filed a writ petition before the Calcutta High Court, which was entertained.
- On 20/09/1983, an interim order was passed by the Calcutta High Court directing the appellant to pay 50% of the disputed duty in cash and execute a bond for the balance.
- On 19/04/2002, the writ petition was allowed, directing the respondents to return the bank guarantee and refund the payment with interest.
- On 30/08/2002, the appellant filed a refund claim.
- In August 2003, the Revenue appealed against the order, and on 10/07/2008, the Division Bench of the Calcutta High Court held that it had no territorial jurisdiction, giving the appellant liberty to approach the appropriate forum.
- In September/October 2008, the appellant filed a writ petition before the Rajasthan High Court, which was dismissed on 13/05/2009, but the court clarified that the dismissal would not prevent the appellant from availing legal remedies.
- On 24/07/2009, the appellant filed an appeal before the Commissioner (Appeals), which was dismissed on 31/03/2011 on the grounds of limitation.

The Tribunal referenced the Supreme Court ruling in M.P. Steel Corporation Vs. CCE, which stated that in cases where the appellant spent time before other judicial forums, the limitation should be computed under the provisions existing before the 2001 amendment. The Tribunal held that the appellant filed the appeal within the 90-day period as allowed in 1983, thus setting aside the order of the Commissioner (Appeals) and allowing the appeal by way of remand.

Merits of the Classification of the Product:
The appellant argued that their product, a blend of viscos fiber and non-cellulosic synthetic waste, should be classified under tariff item 18-III(i) of the erstwhile Central Excise Tariff Act. They contended that the change in classification ordered by the Assistant Commissioner lacked reasons and was communicated through the Superintendent without providing the actual order.

The Tribunal noted that the Commissioner (Appeals) declined the appellant's plea due to the lack of corroborative evidence. The appellant claimed they never received the final order for the classification list or the finalization of the provisional assessment. The Tribunal found that the Commissioner (Appeals) did not examine the merits of the case based on the submissions and supporting evidence provided by the appellant.

The Tribunal decided to remand the matter back to the Original Authority for a fresh decision on the correct classification of the product. It directed the Original Authority to provide the appellant with an adequate opportunity to present their case and supporting evidence. The Tribunal expected the Original Authority to decide the issue within three months.

Conclusion:
The Tribunal allowed the appeal on the grounds of limitation and remanded the matter back to the Original Authority for a fresh decision on the merits of the classification of the product. The Original Authority was instructed to provide the appellant with an opportunity to submit their case and evidence before passing a reasoned order in accordance with the law.