2013 (3) TMI 61 - AT - Central Excise

Condonation of delay rejected - seeking stay on demand - Held that - Demand of duty was worked out in view of the impugned order passed by the adjudicating authority deciding the classification issue and appellant were directed to pay the same. As on one hand they have sought stay against recovery of the impugned demand while on the other hand in the proforma filled up by them for filing the appeal, the said amount has been claimed as refund without disclosing the appropriate payment particulars of the same. Thus, there appear contradictions in the above discussed facts on record. Moreover, as find that before the Hon ble High Court of Delhi, the appellant has submitted that they have deposited the entire amount of the tax demanded as is recorded in the Order dated 1st February, 1989, while they have now sought stay against the said recovery. In view of the above discussed contradictions and incomplete disclosures relating to the payment of duty, the stay application filed by the appellant is also liable to be dismissed without further discussion. As the appellate authority has observed that on one hand they make a submission before Delhi high Court claiming for refund of deposit made towards demand and on the other hand they have filed stay petition for dispensing with the pre deposit. Learned advocate further submits that if an opportunity would have been given to them he would have satisfied the Commissioner (Appeals) as regards the deposit made. Thus set aside the impugned order and remand the matter to the Commissioner (Appeals) for fresh decision on the point of limitation as also on the point of pre-deposit of dues.

Summary

Issues:
1. Condonation of delay in filing appeals.
2. Calculation of limitation period.
3. Pre-deposit of dues for filing appeals.

Condonation of Delay:
The Commissioner (Appeals) rejected the appeals based on the condonation of delay and Section 35 F of the Central Excise Act. The Tribunal agreed with the Commissioner's view that he had no power to condone the delay beyond 30 days. However, the Tribunal noted that the facts of the case were different. A writ petition challenging the original order was pending before the High Court for a long period before being disposed of in 2011. The Tribunal held that the period during which the matter was pending before the wrong forum should be excluded from the limitation period calculation. Therefore, the appeal was considered to be filed within the limitation period before the Commissioner (Appeals).

Calculation of Limitation Period:
The Tribunal emphasized that the time during which the appeal or writ petition was pending before the wrong forum should not be counted towards the limitation period. In this case, as the matter was pending before the High Court and then before the Tribunal, that time was excluded from the calculation. This exclusion led to the conclusion that the appeal was filed within the limitation period before the Commissioner (Appeals).

Pre-Deposit of Dues:
The Commissioner (Appeals) rejected the appeal due to contradictions in the appellant's submission regarding the payment of duty. The Commissioner found discrepancies between the appellant's claim of depositing the entire amount of duty before the High Court and seeking a stay against recovery. The Tribunal observed that the appellant needed an opportunity to clarify the deposit made. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a fresh decision on the limitation and pre-deposit of dues. The appellant was granted the opportunity to present their case before the Commissioner (Appeals) for further consideration.