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2021 (8) TMI 1027 - AT - Central ExciseMaintainability of appeal - time limitation - appeal filed before Commissioner (Appeals) after a delay of 11 months - section 35 (1) of Central Excise Act, 1944 - HELD THAT - The SVLDR Scheme for settling disputes was introduced prior the period of 60 days to file the appeal before Commissioner (Appeals) could expire. This Scheme talks about amount in arrears (as discussed above) to also be settled. Appellant availed the said benefit within reasonable time without any inordinate unexplainable delay. More time has been taken by the department for considering appellant s request under the Scheme which finally was rejected. The appeal before Commissioner (Appeals) has also been within reasonable time. Commissioner (Appeals) himself has held that appellant otherwise has sufficient reason to reach him but beyond the time as prescribed under Section 35(C ) of Central Excise Act. Also, under the statutory mandate of Section 35 of Central Excise Act that Commissioner (Appeals) is not empowered to condone the delay of more than 30 days over and above the period of 60 days from the date of receipt of Order in Original. Apparently the appeal in the present case could not have been filed before the Commissioner (Appeals) within the said period of 90 days. The matter is ordered to be remanded back to the Commissioner (Appeals) directing him to consider the appeal as the one which has been filed within time and to adjudicate the same on merits - appeal allowed by way of remand.
Issues:
Appeal against Order-In-Appeal dismissal on grounds of limitation under section 35(1) of Central Excise Act, 1944. Detailed Analysis: 1. The appellant filed an appeal against the Order-In-Original dated 31.7.2019, which was rejected due to a delay of 11 months, invoking section 35(1) of the Central Excise Act, 1944. The appellant was accused of wrong availment of CENVAT Credit, leading to a recovery demand of ?41,01,193 along with interest and penalty. The appellant, engaged in manufacturing PVC products, was alleged to have collected duty amounts from customers but not remitted to the government, invoking section 11D(1A) of the Act. 2. The appellant argued that the delay in filing the appeal was due to exploring remedies under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019. The scheme allowed appeals against confirmed demands not yet challenged, with a provision for time extension. The appellant contended that the time taken to understand the scheme and apply should be excluded from the appeal timeline. The Commissioner (Appeals) had acknowledged the appellant's valid reasons but dismissed the appeal based on the statutory limitation. 3. The Departmental Representative opposed the appellant's arguments, emphasizing that the appellant opted for the dispute settlement scheme after the Order-In-Original, which did not justify time exclusion. Referring to section 35 of the Act, the Department argued that the appeal was filed beyond the prescribed 90-day limit from the original order date, justifying the dismissal by the Commissioner (Appeals). 4. The Member (Judicial) analyzed the timeline of events, noting that the appellant applied under the dispute resolution scheme within a reasonable period after the original order. The appellant's repeated attempts under the scheme, despite rejections, demonstrated diligence in pursuing remedies. Citing legal precedents, the Member emphasized leniency in time-bound matters, especially when the appellant actively seeks resolution. 5. Considering the statutory limitation under section 35 of the Act, the Member acknowledged that the appeal exceeded the 90-day limit set by the Commissioner (Appeals). However, based on the appellant's proactive approach and the need for a fair hearing, the Member ordered a remand to the Commissioner (Appeals) for a merit-based adjudication, allowing the appeal for further consideration. In conclusion, the judgment allowed the appeal by remanding the matter back to the Commissioner (Appeals) for a detailed review on merits, highlighting the importance of fair adjudication despite technical limitations.
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