2008 (7) TMI 404 - HC - Central Excise

Limitation - extension of 30 days to file the appeal seeked - Held that - We are fully convinced that the Commissioner (Appeals) had allowed the Appeal to be presented and heard the same on merits, it means he was fully satisfied with sufficient cause for condoning the delay of 29 days and as such the same was condoned. If the Appeal was not allowed to be presented without being satisfied with the delay, the Commissioner could not have even issued the notice of hearing to the Appeal as well as on the stay Application. Under the aforesaid facts and circumstances of the case, we find that the impugned order dated 15th October, 2007 passed by the Commissioner (Appeals) as well as the impugned order dated 12th February, 2008 passed by the CESTAT are not sustainable in law and accordingly we set aside both the aforesaid orders and remand back the Appeal to the Commissioner (Appeals) for hearing and final disposal of the same strictly on its own merits in accordance with law.

Summary

Issues:
Challenge to orders passed by Commissioner (Appeals) and CESTAT regarding delay in filing an Appeal under Section 35 of the Central Excise Act, 1944.

Analysis:
The Appeal challenged orders by the Commissioner (Appeals) and CESTAT regarding a delay in filing an Appeal under Section 35 of the Central Excise Act, 1944. The main contention was that the Appellant had requested a further extension of 30 days due to unforeseen exigencies after a delay of 29 days in filing the Appeal. The Commissioner (Appeals) had dismissed the Appeal solely on the ground of delay, without considering the merits. The Appellant argued that the Commissioner (Appeals) should have condoned the delay as they had given a specific reason for the delay in a letter dated 18th July, 2007. The Commissioner (Appeals) had allowed the Appeal to be presented and heard on merits, leading the Appellant to believe the delay was condoned.

The Appellant contended that the Commissioner (Appeals) should have considered the Appeal on its merits instead of dismissing it based solely on the delay. The Commissioner (Appeals) had not provided an opportunity for the Appellant to explain the delay, despite the Appellant's letter requesting an extension due to unforeseen exigencies. The Appellant argued that the Commissioner (Appeals) allowing the Appeal to be presented and heard on merits indicated satisfaction with the reasons for the delay, thus implying condonation of the delay.

The High Court found that the orders of the Commissioner (Appeals) and CESTAT were not sustainable in law. The Court set aside both orders and remanded the Appeal back to the Commissioner (Appeals) for a fresh hearing and final disposal on its own merits in accordance with the law. The Court concluded that the Commissioner (Appeals) had effectively condoned the delay by allowing the Appeal to be presented and heard on merits, indicating satisfaction with the reasons provided for the delay.