2009 (9) TMI 391 - HC - Central Excise

Condonation of delay- appellants have preferred appeals against the judgment passed by the Commissioner (Appeals), Customs and Central Excise, Indore, who dismissed the appeals filed by the present appellants as barred by limitation. In the light of the various decisions it is held that- it should be presumed that the appeals were preferred before the Tribunal on 5-12-2002, i.e., on 90th day, which was the last day of the limitation. The Tribunal has committed the jurisdictional error in disposing the appeals as barred by limitation. Hence, allow these appeals setting aside the impugned order and remand the matter back to the Appellate Authority to consider the case.

Summary

Issues:
Admission of appeals on the substantial question of law regarding the dismissal of appeals by the Customs, Excise and Service Tax Appellate Tribunal as barred by limitation without deciding the application under Section 5 of the Limitation Act.

Analysis:
The High Court heard the matter with the consent of both parties. The appellants had filed appeals against the Commissioner (Appeals) judgment dismissing their appeals as barred by limitation. The Commissioner refused to condone the delay in filing the appeals beyond the prescribed period. The appellants argued that the appeals were dispatched within 90 days but were received by the Department after the deadline. The counsel highlighted that part of the delay was due to holidays, and the appeals were dispatched as per Postal Department instructions for delivery within 48 hours. The limitation expired on 5-9-2002, and the appeals were dispatched on 3-12-2002. Citing relevant Supreme Court judgments, the appellants contended that the Post Office should be considered the Tribunal's agent, and the appeals should be deemed as filed on the 90th day, the last day of the limitation period.

The High Court, based on the arguments presented, concluded that the Tribunal had erred in dismissing the appeals as barred by limitation. The Court allowed the appeals, set aside the impugned order, and remanded the matter back to the Appellate Authority for consideration on merits. The appellants were directed to pay costs of Rs.5,000 to the respondents. The parties were instructed to appear before the Commissioner (Appeals) on a specified date for further proceedings. Subsequently, all three appeals were disposed of accordingly.