2021 (8) TMI 415 - AT - Central Excise

Condonation of delay of 282 days in filing appeal - delay was caused due to prevailing confusion during the time - only prayer in the appeal was for rectification due to mistake of law committed by Dy. Commissioner in the order-in-original - HELD THAT - It is found that a simple rectification petition before the Adjudicating Authority could have been sufficient pointing out to the Transitional Provisions for granting of cash refund. However, CGST regime was brought into force w.e.f. 1.7.2017 and there was lots of confusion and lack of knowledge, both on the part of the Departmental Officers as well as the assesses. This appeal is entertained for doing justice to the appellant - also, the delay before the Commissioner (Appeals) was of 282 days and there are no deliberate latches on the part of the appellant. The delay is apparently caused due to confusion prevailing, being the initial period of CGST regime. The order-in-original is modified directing the Adjudicating Authority to grant cash refund of ₹ 4,87,015/- with interest from the date of sanction till the date of disbursement, as per Rules - cost is imposed on the appellant of ₹ 10,000/- to be paid to the UNICEF and compliance report to be filed before the Registry within 2 months, by 30.09.2021 - Appeal allowed.

Summary

Issues involved:
- Timeliness of filing the appeal before the Commissioner (Appeals) beyond the prescribed period.
- Rectification of a mistake of law in the order-in-original related to cash refund under Transitional Provisions of CGST Act.
- Consideration of delay in filing the appeal and its justification due to confusion during the initial period of the CGST regime.

Analysis:

1. Timeliness of filing the appeal:
The Department's Authorized Representative raised a preliminary objection regarding the appeal being filed beyond the 90-day period before the Commissioner (Appeals). Citing judgments of the Hon'ble Supreme Court in relevant cases, it was argued that the Commissioner (Appeals) rightly dismissed the appeal due to the lack of power to condone the delay. The contention was that the Tribunal should not interfere and dismiss the appeal outright.

2. Rectification of mistake of law for cash refund:
The appellant's Counsel pointed out that the appeal sought rectification of a mistake of law made by the Deputy Commissioner in the order-in-original. The mistake involved the incorrect crediting of the refund amount in the Cenvat Credit Account instead of granting cash refund as mandated by the Transitional Provisions of the CGST Act. It was emphasized that the mistake of law was evident on the face of the record, justifying the appeal for modification of the original order.

3. Consideration of delay and confusion during CGST regime transition:
The Member (Judicial) considered the arguments presented by both parties and acknowledged that a simple rectification petition before the Adjudicating Authority could have sufficed to address the issue. However, recognizing the confusion and lack of knowledge prevalent during the initial phase of the CGST regime implementation, the Tribunal entertained the appeal to ensure justice for the appellant. The Member noted that the 282-day delay in filing the appeal was not deliberate but a result of the prevailing confusion during the transition period. Consequently, the appeal was allowed, and the order-in-original was modified to direct the Adjudicating Authority to grant the cash refund with interest as per rules.

4. Decision and imposition of costs:
In the final decision, the appeal was allowed, and the order-in-original was modified to grant the cash refund as requested by the appellant. Additionally, a cost of ?10,000 was imposed on the appellant, with instructions to pay it to UNICEF and submit a compliance report to the Registry within two months. The judgment concluded with the directive to keep a copy of the order in the record of the specific appeal number, marking the appeal as allowed.

In summary, the judgment addressed the issues of timeliness in filing the appeal, rectification of a mistake of law for cash refund under the CGST Act's Transitional Provisions, and the consideration of delay due to confusion during the initial phase of the CGST regime. The Tribunal allowed the appeal, modified the original order, and imposed costs on the appellant while emphasizing the need to ensure justice and compliance with the applicable laws.