2019 (1) TMI 703 - AT - Central Excise

Condonation of delay of 38 days in filing appeal - there was strike and unrest in the factory and jurisdiction police station namely Dahanu and Dy. Commissioner of Labour, Boisar were intimated by the appellant regarding such unrest - Held that - Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal - In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. Admittedly, there was delay in filing appeal by the appellant at the Commissioner (Appeals) end and the delay being 60 days he is not empowered by the statute to condone the delay. In view of the decision of this Tribunal in Yapp India Automotive decision dated 21.06.2018/10.07.2018, delay of 60 days in filing appeal before the Commissioner (Appeals) is also condoned at this end - the matter is remanded back for readjudication by the Commissioner (Appeals). Appeal allowed by way of remand.

Summary

Issues:
- Delay in filing appeal due to labor unrest and strike
- Condonation of delay based on substantial justice
- Lack of merit discussion in the Commissioner (Appeals) order
- Need for readjudication by the Commissioner (Appeals)

Delay in Filing Appeal due to Labor Unrest and Strike:
The appellant argued that labor unrest and strike hindered the management's ability to trace the correct date of receipt of the impugned order, leading to a delay of 38 days in filing the appeal. The appellant presented evidence of unrest and strike from November 2016 to September 2017 and December 2017 to January 2018, which continued during the adjudication and appeal process. The Tribunal acknowledged the unrest as a sufficient cause for the delay, citing the principle that substantial justice should prevail over technical considerations.

Condonation of Delay Based on Substantial Justice:
Referring to previous Supreme Court decisions, the Tribunal emphasized that in cases of non-deliberate delay, substantial justice should be favored over technicalities. The Tribunal noted that a delay of a few days warrants a liberal approach, especially when there is no presumption of deliberate delay. Consequently, the Tribunal exercised its discretion to condone the delay of 38 days and admitted the appeal for hearing.

Lack of Merit Discussion in the Commissioner (Appeals) Order:
The Tribunal observed that the Commissioner (Appeals) had rejected the appeal solely on the grounds of limitation without discussing the merits of the case or the tax liability of the appellant. This lack of consideration for the substantive issues raised in the appeal prompted the Tribunal to intervene and assess the merit of the decision.

Need for Readjudication by the Commissioner (Appeals):
Given the Commissioner (Appeals) did not address the merits of the case and rejected the appeal based on limitation, the Tribunal determined that a readjudication by the Commissioner (Appeals) was necessary. The Tribunal highlighted that the Commissioner (Appeals) has the authority to conduct further inquiries and pass a proper order, emphasizing the importance of not confining views solely to the adjudicating authority's decision. The matter was remanded back to the Commissioner (Appeals) for a fresh assessment.

In conclusion, the Tribunal's judgment focused on balancing the principles of substantial justice with procedural requirements, ultimately leading to the condonation of the delay in filing the appeal and the decision to remand the case for a more thorough review by the Commissioner (Appeals) to ensure a just outcome.