2022 (2) TMI 150 - AT - Customs

Maintainability of appeal - time limitation - appeal has been rejected for being not filed within the statutory period as provided under Section 35 of Central Excise Act, 1994 - HELD THAT - The Order in Original was received by the Appellant on 10th May, 2018 as has duly been acknowledged by Commissioner (Appeals) in para 5.2 of the order under challenge. Though Commissioner (Appeals) has recorded that the appeal before him was filed on 13th July, 2018 but as is apparent from Annexure D on record that the appeal was filed on 11.07.2018 itself. These facts make it clear that a miniscule delay of two days over and above the 60 days has occurred in the present case while filing an appeal before Commissioner (Appeals). As per Section 35 of Central Excise Act 1944, no doubt an appeal has to be filed before Commissioner (Appeals) within 60 days of receipt of Order-in-Original but the proviso therein extends a discretion to Commissioner (Appeals) itself to condone the delay for a further period of 30 days. No doubt there was no application seeking Condonation of delay was filed by the appellant as has been acknowledged by ld. Counsel as on date as well - The delay is so minuscule that the malafide intent cannot be opined against the appellant. Law is otherwise settled that the disposal of a lis shall always be on merits. Law of limitation is otherwise to be exercised liberally. It is deemed to be a fit case where Commissioner (Appeals) should have decided the appeal on merits after liberally exercising his discretion of condoning the delay - appeal allowed by way of remand.

Summary

Issues:
1. Timeliness of filing the appeal under Section 35 of Central Excise Act, 1994.
2. Consideration of delay in filing the appeal.
3. Discretion of Commissioner (Appeals) to condone the delay.

Analysis:
1. The appeal was filed challenging the rejection of a refund claim under a special refund mechanism. The Order-in-Appeal was rejected for not being filed within the statutory period as per Section 35 of the Central Excise Act, 1994.
2. The appellant received the Order in Original on 10th May, 2018, and filed the appeal on 11th July, 2018, a delay of two days beyond the 60-day limit. The appellant argued that the delay was due to personal exigency beyond the control of the counsel. The Commissioner (Appeals) acknowledged the delay but did not point out the defect or allow for condonation of the delay.
3. The Tribunal observed that the delay was minimal and the malafide intent could not be attributed to the appellant. Referring to legal principles, the Tribunal emphasized on deciding matters on merits and exercising the law of limitation liberally. Citing a Supreme Court decision, the Tribunal highlighted the importance of not throwing out meritorious matters due to delay. The Tribunal concluded that the Commissioner (Appeals) should have exercised discretion to condone the delay and decide the appeal on merits. Consequently, the matter was remanded, and the appeal was allowed by way of remand.