2022 (7) TMI 717 - AT - Service Tax

Maintainability of appeal - time limitation - appellate jurisdiction - power of Commissioner (Appeals)to condone delay beyond 60 plus 30 days - refund of rebate - CESTAT has jurisdiction to entertain the appeal in view of operation of Section 83 of the Finance Act, 1994 read with Section 86 amended provisions vis. a. vis Section 35EE of Central Excise Act, 1944 or not - HELD THAT - In acceptance of the death of Managing Director and brain haemorrhage of the present Director of the Appellant Company as legal disability due to mental insanity, etc. delay in filing the appeal before the Commissioner (Appeals) is condoned at this end by invoking the principle enumerated under Section 6 of the Indian Limitation Act and the matter is remanded back to the Commissioner (Appeals) for a de novo hearing on merit of the appeal against the order passed by the refund sanctioning authority. The Commissioner (Appeals) is supposed to give his/her findings also on the nature of refund claim if made as a claim on rebate or claim on deposit made under mistake of fact, which reference to the judicial precedent - Delay of 1354 days in filing both appeals before the Commissioner (Appeals) is hereby condoned and the matter is remanded back for a de novo hearing.

Summary

Issues:
Appeal maintainability before CESTAT due to delay in filing and nature of the appeal (refund of rebate).

Analysis:
- The appellant argued that the delay of 1354 days in filing appeals before the Commissioner (Appeals) was due to the Managing Partner's death and the Director's brain haemorrhage, leading to memory loss. The appellant cited various legal precedents to support the condonation of the delay and requested a fresh decision on merit.

- The authorized representative contended that the appeal was not maintainable in CESTAT due to two reasons. Firstly, the Commissioner (Appeals) had no power to condone the delay beyond 60 plus 30 days as per the Finance Act, 1994. Secondly, the issue of refund of rebate fell outside CESTAT's jurisdiction under specific provisions of the Finance Act, 1994 and Central Excise Act, 1944.

- The authorized representative referred to legal judgments, including those of the Supreme Court and Bombay High Court, to argue that after 90 days, the Commissioner (Appeals) cannot entertain an appeal against an Order-in-Original. The representative also highlighted decisions of Co-ordinate Benches of CESTAT that rejected the principles laid in certain previous judgments, emphasizing the need to respect orders passed by Co-ordinate Benches.

- The tribunal, after reviewing the case record and additional documentary evidence, acknowledged the bonafide delay due to uncontrollable events faced by the appellant. The tribunal relied on legal principles, including the Indian Limitation Act, to condone the delay and remand the appeal for re-adjudication. The tribunal emphasized the withdrawal of the appeal by the Respondent-Department against a previous order, making its findings a binding precedent. The tribunal accepted the legal disabilities faced by the appellant's directors and remanded the matter back to the Commissioner (Appeals) for a fresh hearing on the appeal's merit.

- Both appeals were allowed, and the delay of 1354 days in filing the appeals was condoned. The matter was remanded for a de novo hearing based on the tribunal's directions. The order was pronounced in the open court on 14.07.2022.