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2023 (10) TMI 108 - AT - Central ExciseComputation of period for filing of appeal in stipulated time - appeal dismissed being time barred on the ground that the appeal has been filed before him 92 days after the admitted communication date of the Order-in-Original - HELD THAT - The Learned Commissioner (Appeals) has dismissed the appeal being time bar on the ground that the appeal was filed after 92 days. As per the fact of the present case, we find that the admitted date of communication of the Order-in-Original was considered and accepted by the commissioner (Appeals) i.e. 23.06.2014. But the appeal was dismissed on the ground that since the appeal was filed on 22.09.2014, which is beyond 90 days and beyond 90 days the commissioner (Appeals) has no power to condone the delay. In the fact of the present case, the admitted communication date of the Order-in-Original is 23.06.2014, which has to be excluded in terms of Section 9 above. Therefore, the commencement of the period shall be from 24.06.2014 and from that date 90 days completes on 21.09.2014 - 21st September, 2014 being a last date for filing appeal falls on Sunday, therefore in terms of Section 10 the appeal could have been validly filed on 22nd September, 2014, in this case the appeal was filed on 22.09.2014. Thus, the appeal was filed well within the stipulated period of 90 days. Therefore, the contention of the Learned Commissioner (Appeals) that the appeal was filed after 92 days, without considering the General Clause Act, 1897 is absolutely incorrect and illegal. Applicability of judgment of Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT - HELD THAT - Since the appeal itself was filed within stipulated time period of 90 days, the ratio of the judgment of the Hon ble Supreme court in the case of SINGH ENTERPRISES as also in the case of COMMISSIONER OF CUSTOMS CENTRAL EXCISE VERSUS M/S HONGO INDIA (P) LTD. ANR. 2009 (3) TMI 31 - SUPREME COURT not relevant. The impugned order is set aside and appeal is allowed by way of remand to the commissioner (Appeals) to decided matter on merit within a period of two months from the date of this order.
Issues involved: Appeal dismissed as time-barred by Commissioner (Appeals) due to delay in filing beyond condonable period of 30 days.
Summary: Issue 1: Dismissal of appeal as time-barred The Commissioner (Appeals) dismissed the appeal as time-barred, stating it was filed 92 days after the communication date of the Order-in-Original, beyond the condonable period of 30 days as per Section 35(1) of the Central Excise Act, 1944. Details: The appellant argued that the appeal was filed within the stipulated time period of 30 days after 60 days, considering the communication date of the order and the General Clauses Act. It was contended that the appeal was filed within 90 days, accounting for the exclusion of the first day and the provision for the next working day in case of weekends. Issue 2: Interpretation of General Clauses Act The Tribunal examined the provisions of the General Clauses Act, 1897, specifically Sections 9 and 10, regarding the commencement and computation of time for filing the appeal. Details: The Tribunal noted that as per the General Clauses Act, the first day is excluded while computing a period, and if the last day falls on a day when the office is closed, the next working day is considered the last day. Applying these provisions, it was found that the appeal was validly filed within the stipulated 90 days, considering the exclusion of the communication date and the provision for the next working day after a weekend. Issue 3: Relevance of Supreme Court judgments The Tribunal addressed the relevance of Supreme Court judgments cited by the Commissioner (Appeals) in the context of the timely filing of the appeal within the prescribed period. Details: The Tribunal found that since the appeal was filed within the stipulated time period of 90 days, the judgments cited were not relevant to the present case. The Tribunal emphasized that the appeal was filed within the required timeframe, making the cited judgments inapplicable. Conclusion: The impugned order was set aside, and the appeal was allowed to be remanded to the Commissioner (Appeals) for a decision on the merit within two months from the date of the order.
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