2021 (8) TMI 100 - AT - Central Excise

Condonation of delay in filing appeal - sufficient cause for delay or not - time limitation - appeal dismissed on the ground that the same is barred by time invoking section 35(1) of Central Excise Act, 1944 - HELD THAT - There are no fault on the part of the appellant to form a reasonable apprehension of receiving the order not prior than 2 to 3 years. Commissioner (Appeals) has considered the date of communication of order dated 31.10.2017 i.e. 10.11.2017 on which date the department mentioned to have despatched the said order to the present appellant by speed post. First of all, date of despatch cannot be the date of communication. As per General Clauses Act, dispatched letter cannot be presumed to be delivered before 15 days of date of despatch. Secondly, despatching the order by speed post is not acceptable mode of service. Section 35F of Central Excise Act mandates that the appeal before Commissioner (Appeals) is to be filed within 60 days of receipt of the order by Original Adjudicating Authority. In addition, it mandates that the Commissioner (Appeals) can condone the delay on sufficient cause being shown but not beyond the period of 30 days from the expiry of said period of 60 days - Commissioner (Appeals) had no option to condone the delay which involves more than 90 days from the date of receipt of the order challenged before him. Seen from that angle, there seems no infirmity in the order under challenge. The appellant has sufficient cause for filing the appeal on 13.8.2019 against Order of 31.10.2017. Accordingly, said delay is hereby condoned - the matter is remanded back to Commissioner (Appeals) for adjudicating the matter on merits - Appeal allowed by way of remand.

Summary

Issues:
Appeal against rejection based on time limitation under section 35(1) of Central Excise Act, 1944.

Analysis:
The appellant filed an appeal challenging the rejection order based on time limitation under section 35(1) of the Central Excise Act, 1944. The appellant argued that there was a delay of one year and 9 months in filing the appeal due to various reasons, including the prolonged process of litigation and delays in receiving orders. The appellant contended that the appeal was filed within 60 days of receiving the copy of the Order-in-Original, despite the delay in the overall process. The Departmental Representative, however, emphasized that the appeal was received after a significant delay and should be dismissed.

The Tribunal analyzed the chronology of events, highlighting the delays in various orders and communications. The Tribunal noted that the Commissioner (Appeals) considered the date of communication of the order, which was dispatched by speed post. However, the Tribunal cited legal precedents to establish that dispatch by speed post is not an acceptable mode of service under the Central Excise Act. It was emphasized that the date of dispatch cannot be presumed as the date of communication, and proper service methods must be followed.

Furthermore, the Tribunal referred to section 35F of the Central Excise Act, which mandates the timeline for filing appeals and the Commissioner's authority to condone delays. It was observed that the Commissioner (Appeals) had no discretion to condone delays exceeding the statutory limit. The Tribunal also stressed the importance of ensuring that parties are not prejudiced by technicalities and that substantial justice is upheld.

In light of the arguments and legal provisions, the Tribunal found that the appellant had shown sufficient cause for the delay in filing the appeal. The Tribunal, therefore, condoned the delay and remanded the matter back to the Commissioner (Appeals) for adjudication on merits. The Commissioner (Appeals) was directed to expedite the decision within two months of receiving the Tribunal's order.

In conclusion, the Tribunal allowed the appeal by remanding the matter for further adjudication, considering the appellant's justifications for the delay and ensuring that the case proceeds on its merits without being prejudiced by technicalities.