2019 (11) TMI 379 - AT - Central Excise

Time limitation - maintainability of appeal - appeal dismissed on the ground of time bar - CENVAT credit - HELD THAT - As per Section 35 of the CEA, 1944, an appeal to the Commissioner (A) is required to be filed within 60 days from the date of receipt of the order by the person who is aggrieved by such order. Further, proviso to Section 35 provides that the Commissioner (A) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, allow it to be presented within a further period of 30 days. In the present case, the appeal was filed beyond the prescribed period of 60 days. The delay of approximately 27 days in filing the appeal was within the condonable power of the Commissioner (A). The delay of approximately 27 days in filing the appeal before the Commissioner (A) is condoned - case remanded back to the Commissioner (A) with a direction to decide the case on merits - appeal allowed by way of remand.

Summary

Issues:
- Appeal against rejection on time bar without considering merits
- Delay in filing appeal due to takeover of unit by bank
- Proper service of Order-in-Original (OIO) and condonable delay

Analysis:
1. Appeal Rejection on Time Bar:
The appeal challenged the rejection based on being time-barred without delving into the case's merits. The Commissioner (A) dismissed the appeal citing a delay of approximately 680 days in filing after serving the OIO. The appellant argued that the delay was within the condonable limit of 30 days due to specific circumstances related to the takeover of their unit by a bank. The Tribunal found that the delay was actually only 27 days, falling within the Commissioner's power to condone under Section 35 of the CEA, 1944. The Tribunal disagreed with the reliance on the Singh Enterprises case, as the OIO was received by the appellant only on 21.11.2018, making the delay justifiable.

2. Delay Due to Unit Takeover:
The appellant contended that the delay in filing the appeal was due to the unit being taken over by SBI/Andhra Bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act. The unit was restored to the appellant only on 19.11.2018, impacting their ability to promptly respond to the OIO. The Tribunal acknowledged this factor and considered it in determining the justifiability of the delay.

3. Proper Service of OIO and Condonable Delay:
The Tribunal scrutinized the service of the OIO, noting discrepancies in the service process. It was observed that the OIO was pasted on the closed unit's Notice Board under Mahazar proceedings, which was deemed inadequate service when the unit was not in the appellant's possession. The Tribunal emphasized that the OIO was actually received by the appellant on 21.11.2018, leading to the filing of the appeal on 18.02.2019. The Tribunal applied the provisions of Section 35 of the CEA, 1944, allowing for a condonable delay of 30 days, which covered the appellant's 27-day delay. The Tribunal, therefore, remanded the case back to the Commissioner (A) for a decision on the merits, allowing the appeal by way of remand.

This detailed analysis showcases the Tribunal's thorough examination of the issues raised in the appeal, emphasizing the importance of procedural compliance and justifiable delays in legal proceedings.