2015 (1) TMI 1180 - AT - Central Excise

Condonation of delay - Inordinate delay of 739 days - Imposition of penalty - Held that - On 3-9-2013, the COD application was taken up for consideration and an order was passed observing that there was a dispute as to the date of receipt of the appeal in the Tribunal's Registry. The appeal in fact was physically filed on 6-2-2013, with a delay of 739 days. The Tribunal observed that in the COD application, the petitioner asserted that there was no delay as the appeal was sent to the Tribunal through a Courier service - M/s Time Pak Courier on 21-1-2011 and as per the Courier service receipt, the appeal was received by the Tribunal on 22-1-2011 along with a Demand Draft towards the appeal fee. In its order dated 3-9-2013, Tribunal directed the Registry to verify and report regarding the petitioner's claim of filing the appeal through Courier and whether the appellant had sent an e-mail enquiring about the filing of appeal, on 19-3-2012. Registry has furnished a report signed by the Registrar on 3-9-2013. As per this report, no appeal was received either by Courier, by post or by hand, earlier to 6-2-2013. The report also states that signature on the Courier receipt does not tally with the signatures of any officer of the Registry. The report also states that the e-mail sent by the petitioner on 19-3-2012 was received by the Registry along with the copy of the Courier receipt, on 19-3-2012. However no Demand Draft was received and there is no entry of receipt of a Demand Draft in the Demand draft register. Choice of the Courier is of petitioner/appellant and therefore the Courier service provider is an agent of the appellant. In the light of the report of the Registrar dated 30-9-2012, it is apparent that the appeal was not filed/received in the Tribunal prior to 6-2-2013, a date on which the appeal was physically filed by the petitioner. In the circumstances, the extraordinary delay of 739 days cannot be condoned as there is no valid justification established for such inordinate delay. - Condonation denied.

Summary

Issues: Condonation of delay in filing appeal, Disallowance of Cenvat credit, Levy of penalty, Verification of appeal filing through Courier service, Condonation of Delay application rejection.

Condonation of delay in filing appeal:
The appellant sought condonation of a 739-day delay in filing an appeal against the appellate order confirming Central Excise duty demand, disallowance of Cenvat credit irregularly availed, and levy of penalty. The Tribunal observed discrepancies in the appellant's claim of filing the appeal through a Courier service, as confirmed by the Registry report. Despite the appellant's assertion, the Tribunal found no valid justification for the inordinate delay and rejected the application for condonation of delay, leading to the appeal's failure.

Disallowance of Cenvat credit and Levy of penalty:
The Assistant Commissioner confirmed Central Excise duty demand due to disallowance of Cenvat credit irregularly availed by the appellant on various items under the Central Excise Act and Cenvat Credit Rules. The Commissioner (Appeals) upheld the disallowance of Cenvat credit and duty demand but reduced the penalty imposed, noting the absence of evidence supporting intent to evade duty. The penalty was scaled down to Rs. 1 lakh under Rule 15(1) of the Cenvat Credit Rules, 2004.

Verification of appeal filing through Courier service:
The appellant claimed to have sent the appeal through a Courier service, supported by a receipt and an email inquiry to the Tribunal. However, the Registry's report contradicted this claim, stating that no appeal was received by any means before the physical filing date. The report highlighted discrepancies in the signatures on the Courier receipt and the absence of a record for the appeal fee Demand Draft. The Tribunal considered the Courier service as the appellant's agent and based on the Registrar's report, concluded that the appeal was not filed or received before the physical filing date, leading to the rejection of the condonation of delay application.

Condonation of Delay application rejection:
Due to the lack of valid justification for the substantial delay in filing the appeal, the Tribunal rejected the Condonation of Delay application, resulting in the failure of the appeal. No costs were awarded in this regard.