2019 (12) TMI 935 - AT - Central Excise

Condonation of delay in filing - Time Limitation - CENVAT Credit - capital goods - period from 30.06.2011 to 30.06.2013 - reason for delay given is that the person who was handling the matter of Excise has left the job without any prior notice - HELD THAT - The reason is not sufficient to condone the delay. The appellant has failed even to specify the name of the concerned person and the date when he would have left the job. Above all, Commissioner (Appeals) has no statutory power to condone the delay beyond 90 days (60 30 days). The present appeal has been filed beyond said 90 days. Accordingly, there are no infirmity in the order of Commissioner (Appeals). Hon ble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT where it was held that it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. The appeal stands dismissed, not only for want of prosecution but also on merits of the case.

Issues:
1. Appeal dismissed on the ground of limitation.
2. Failure to appear for the appeal.
3. Incorrect availing of Cenvat credit.
4. Delay in filing appeal before Commissioner (Appeals).
5. Sufficiency of reasons for delay.
6. Statutory power to condone delay.

1. Appeal Dismissed on the Ground of Limitation:
The appellant failed to appear for the appeal multiple times, indicating a lack of interest. The Commissioner (Appeals) had dismissed the appeal solely on the grounds of limitation. The appeal was filed after 95 days from the date of receipt of the order, exceeding the statutory limit of 60 days for filing an appeal. Although the Commissioner (Appeals) can condone a delay of up to 30 days with a sufficient cause, the reason provided by the appellant for the delay was deemed insufficient. The appellant's failure to specify the concerned person's name and the date of leaving the job contributed to the dismissal of the appeal.

2. Failure to Appear for the Appeal:
The appellant consistently failed to appear for the appeal proceedings, despite multiple adjournments. This conduct indicated a lack of diligence and interest in pursuing the appeal. The Tribunal noted the appellant's repeated absence and lack of engagement with the legal process, which influenced the decision to dismiss the appeal.

3. Incorrect Availing of Cenvat Credit:
The appellant, engaged in the manufacture of yarn and fabric, had wrongly availed Cenvat credit on capital goods totaling ?6,51,756 during a specified period. The credit was availed based on invoices belonging to another unit within the same group. The Department issued a show cause notice proposing the recovery of the alleged wrongly availed amount, along with interest and penalty. The order-in-original confirmed the proposal, leading to the appeal process.

4. Delay in Filing Appeal Before Commissioner (Appeals):
The appellant filed the present appeal challenging the order primarily on the ground of limitation. The appeal was filed after the prescribed period of 60 days from the receipt of the original order. The appellant cited the sudden departure of the person handling excise matters as the reason for the delay. However, this reason was not considered sufficient by the Commissioner (Appeals) and was not supported by additional details or evidence.

5. Sufficiency of Reasons for Delay:
The Tribunal analyzed the sufficiency of the reasons provided for the delay in filing the appeal. The appellant's explanation regarding the departure of the individual handling excise matters was deemed insufficient due to the lack of specific details such as the person's name and the date of departure. The Commissioner (Appeals) lacked statutory power to condone delays beyond 90 days, and since the appeal was filed beyond this limit, the delay was not considered justifiable.

6. Statutory Power to Condone Delay:
The Tribunal referenced a case law from the Hon'ble Supreme Court to support its decision regarding the limitation period and the power to condone delays. The case law emphasized the importance of providing a sufficient cause for delays and highlighted that there cannot be a standard formula for accepting or rejecting explanations for delays. The Tribunal ultimately dismissed the appeal for both lack of prosecution and on the merits of the case, based on the failure to meet the statutory requirements and provide a satisfactory reason for the delay.

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