2013 (6) TMI 296 - AT - Central Excise

Condonation of delay - Held that - As from the appellant s correspondence with the department it is clear that there was a factual mistake regarding the date of hearing in the order passed by the Deputy Commissioner, as while the date of order was 30th March 2012, the date of hearing as recorded in the order was 11/4/12. It is only after pointing out of discrepancy by the appellant that the department issued a corrigendum correcting the date of hearing as 11/3/12 in para 15 of the order. The appellant filed appeal before the Commissioner (Appeals) only after the issue of the corrigendum dated 14th May 2012. Therefore, the reason for 16 day s delay in filing of the appeal is genuine and the same being within 30 days should have been condoned by the Commissioner (Appeals). Thus the Commissioner (Appeals) order refusing condoning the delay is not correct.

Issues: Jurisdictional error in order-in-original regarding the date of hearing leading to delay in filing appeal. Refusal to condone delay by Commissioner (Appeals).

Analysis:

1. Jurisdictional Error in Order-in-Original: The case involved a situation where the Jurisdictional Deputy Commissioner confirmed a duty demand against the appellant along with interest and penalty under Section 11AC of the Central Excise Act. The order-in-original dated 30th March 2012 mentioned the date of hearing as 11/4/12, causing confusion for the appellant. Upon receiving the order on 14/4/12, the appellant sought clarification from the Deputy Commissioner regarding this discrepancy. The department issued a corrigendum on 14th May 2012, correcting the date of hearing to 11/3/12. The appellant then filed an appeal before the Commissioner (Appeals) on 29/6/12.

2. Refusal to Condone Delay: The Commissioner (Appeals) refused to condone the delay of 16 days in filing the appeal, citing that the appeal was filed late. The appellant, through their counsel, argued that the delay was only 13 days, not 16 days, and was due to a genuine reason - the factual mistake in the order-in-original regarding the date of hearing. The counsel contended that the delay was solely because of the discrepancy in the date of hearing, which was rectified by the department through the corrigendum. The appellant requested condonation of the delay, highlighting that the Commissioner (Appeals) had the power to condone delays up to 30 days.

3. Judgment: After hearing both sides and examining the records, the Judge found that there was indeed a factual mistake in the order passed by the Deputy Commissioner regarding the date of hearing. The appellant had filed the appeal only after the issuance of the corrigendum rectifying the error. The Judge considered the 16-day delay in filing the appeal as genuine, especially since it was within the 30-day condonable period. Consequently, the Judge held that the Commissioner (Appeals) erred in refusing to condone the delay and dismissed the appeal solely based on timing. The Judge set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a decision on the merits of the case.

This detailed analysis of the judgment highlights the jurisdictional error, the refusal to condone the delay, and the ultimate decision of the Judge to remand the case for further consideration based on the genuine reasons presented by the appellant.

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