2017 (8) TMI 880 - HC - Central Excise

Whether the Tribunal is justified in affirming the order of Commissioner (Appeals) rejecting the appeal as not in accordance with Rule 213 in absence of the Statement of fact and grounds of appeal without providing/any opportunity to cure the defect? - Held that - The provision of appeal clearly contemplates an opportunity of hearing as also the principles of natural justice are inbuilt. Therefore, there is no reason why the asessee have not been given any chance to add the grounds or write the grounds. The defect was no doubt curable. The authority concerned should have allowed the appellant to cure the defect - matter sent back to Tribunal for fresh consideration - appeal allowed by way of remand.

Summary

Issues:
Appeal rejection under Rule 213 for not providing statement of facts and grounds of appeal, Opportunity of hearing and defect curability under Section 35A of the Central Excise Act, 1944.

Analysis:
The judgment pertains to an appeal filed by the assessee challenging an order passed by the Customs, Excise & Service Tax Appellate Tribunal. The main issue raised was whether the Tribunal was justified in affirming the order of the Commissioner (Appeals) rejecting the appeal due to the absence of the statement of facts and grounds of appeal under Rule 213 without providing an opportunity to rectify the defect. The Tribunal had rejected the appeal on the grounds that no delay condonation application was filed and hence the appeal was not in proper form.

The High Court observed that Section 35A of the Central Excise Act, 1944 mandates that an opportunity of hearing be provided to the assessee and allows for curing any delay in submitting grounds or making additional grounds. The Court emphasized that the principles of natural justice require giving the assessee a chance to rectify any defects in the appeal. In this case, the defect in the appeal was curable, and the authority should have allowed the appellant to rectify it. However, no such opportunity was provided, and the appeal was decided without giving the party a chance to be heard or to cure the defect.

Consequently, the High Court set aside the impugned order and directed the matter to be sent back to the Tribunal for fresh consideration. The Court instructed the Tribunal to give the assessee an opportunity to add the grounds, statement of facts, and a chance for a hearing. If the party approaches the Tribunal within the next 15 days with the required documents, the Tribunal should consider them in accordance with the law after providing an opportunity for a hearing. The judgment was in favor of the assessee, and the appeal was allowed accordingly.