2023 (10) TMI 1105 - AT - Central Excise

Condonation of delay in filing appeal - appeal dismissed on the ground that the appeal is filed beyond the period of limitation of 60 days and further beyond the condonation period of 30 days - HELD THAT - There is no lack of diligence on the part of the appellant in presenting their appeal. It is further found that although there is error or mistake on the part of the staff or clerk in filing of the appeal, but it is found that there is also constructive error or negligence on the part of the receiving clerk in the Department. Either such clerk should have directed and guided the person, who had come to file appeal, to the right counter. Alternatively, it was the duty of the Assistant Commissioner to forward the appeal papers to the office of the Commissioner (Appeals), as it has been received by him mistakenly. The appellant has filed the appeal on 26.09.2018 and the Commissioner (Appeals) have erred in taking the date of filing appeal as 15.03.2022 - the appeal was filed in proper time as permitted under law. The impugned order is set aside and the appeal is allowed by way of remand to the Commissioner (Appeals) to hear the appellant on merits and pass a reasoned order, in accordance with law - Appeal allowed by way of remand.

Summary

Issues involved: Refund claim rejection under Section 11 B read with Section 142(3) of the GST Act, 2017; Appeal filed beyond the limitation period due to clerical error.

Refund Claim Rejection: The appellant, a Public Sector Undertaking, filed a refund claim of Rs. 13,13,638/- which was rejected by the Assistant Commissioner citing ineligibility under Section 11 B read with Section 142(3) of the GST Act, 2017.

Appeal Beyond Limitation Period: The appellant filed an appeal within the 60-day limitation period against the rejection. Due to a clerical error, the appeal was mistakenly presented at the wrong counter. The Commissioner (Appeals) dismissed the appeal as filed beyond the limitation period, considering the re-filing date as the date of representation instead of the original filing date.

Appellant's Arguments: The appellant contended that the appeal was filed within the condonable 60-day period, and any error in filing was not due to lack of diligence. Citing Section 14 of the Limitation Act, the appellant argued that time taken in pursuing litigation before a wrong forum should be excluded for limitation calculation.

Revenue's Response: The Authorized Representative for the Revenue supported the impugned order, emphasizing the need for the appellant to be careful and diligent in filing the appeal at the correct counter.

Tribunal's Decision: The Tribunal found no lack of diligence on the part of the appellant in filing the appeal. It noted constructive error or negligence on the part of the receiving clerk in the Department for not guiding the appellant correctly. The Tribunal held that the appeal was filed within the proper time as permitted by law and set aside the impugned order, remanding the case to the Commissioner (Appeals) for further proceedings.

Conclusion: The Tribunal allowed the appeal, directing the appellant to appear before the Commissioner (Appeals) within 60 days for a hearing on the merits of the case.