2019 (2) TMI 1505 - AT - Customs

Maintainability of appeal - non-compliance with the statutory requirement of pre-deposit - Section 129E of the Customs Act 1962 - appeal was filed beyond the condonable period provided under Section 128 of the said Act - Held that - Section 128 of the Act deals with the provisions of filing of appeal before the Commissioner (Appeals). As per the statutory mandate, the appeal has to be filed within 60 days from the date of the communication of decision or order to the aggrieved party. In the proviso clause appended to sub-section (1) of Section 128 of the Act, it has been stated that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of 60 days, allow it to be presented within a further period of 30 days. On reading of provisions of sub-section (1) of Section 128 of the Act and the first proviso appended thereto, it reveals that the Commissioner (Appeals) is not empowered under the statute to condone the delay, if the appeal is preferred beyond 90 days from the date of receipt of the adjudication order. The time consumed between filing of writ petition and subsequent disposal thereof by the Hon ble Allahabad High Court vide order dated 14.07.2017 should be excluded for the purpose of computation of limitation period in terms of Section 14 of the Limitation Act, 1963. After receipt of order of the Hon ble Allahabad High Court, since the appellant had preferred appeal before the office of the Commissioner (Appeals) within a period of 90 days, such filing of appeal cannot outrightly be rejected on the ground of limitation. Thee is no merits in the impugned order, so far as it dismissed the appeal of the appellant on the ground of non-compliance of the requirements of Section 129E of the Act and filing of appeal beyond the condonable period prescribed in the statute - the matter remanded to the Commissioner (Appeals) for deciding the appeal on merits, based on the available records - appeal allowed by way of remand.

Summary

Issues:
1. Compliance with statutory pre-deposit requirement under Section 129E of the Customs Act 1962 for filing an appeal.
2. Filing of appeal within the condonable period as per Section 128 of the Act before the Commissioner (Appeals).

Analysis:
1. The appellant failed to comply with the pre-deposit requirement under Section 129E of the Act while filing the appeal before the Commissioner (Appeals). However, the appellant contended that the pre-deposit was made when filing the appeal before the Tribunal. The appellant argued that the appeal should be entertained by the Tribunal since the statutory provisions regarding pre-deposit were met. The Learned Advocate cited the case of Khamdhenu Ispat Ltd. vs Commissioner of Central Excise to support the exclusion of time between filing a writ petition and its disposal for computation of the time limit for appeal.

2. The Learned DR for the Revenue argued that the Commissioner (Appeals) does not have the power to condone the delay in late filing of an appeal. Citing the case of Singh Enterprises vs Commissioner of Central Excise, the Revenue emphasized strict adherence to the time limits prescribed in the statute. The Tribunal analyzed the provisions of Section 128 of the Act, which mandates filing an appeal within 60 days, extendable by a further 30 days if sufficient cause is shown. The Tribunal observed that the time consumed between filing the writ petition and subsequent disposal should be excluded for limitation computation under Section 14 of the Limitation Act, 1963.

3. The Tribunal found that the appellant diligently pursued its statutory remedy by filing the writ petition and subsequently the appeal before the Commissioner (Appeals). The Tribunal rejected the Revenue's argument that the appeal was time-barred, citing the case of Khamdhenu Ispat Ltd. The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for deciding the appeal on merits. The appellant was directed to explain the delay in filing the appeal before the Commissioner (Appeals) through an affidavit.

In conclusion, the Tribunal allowed the appeal by way of remand to the Commissioner (Appeals) for further proceedings based on the available records, emphasizing the exclusion of time for computation of the limitation period and the need for the appellant to explain the delay in filing the appeal.