2015 (2) TMI 555 - AT - Central Excise

Time limit for filing of stay application - Application filed belatedly - Availment of CENVAT Credit - Held that - Contrary to the observations of the learned Commissioner about the legal position being settled, the settled legal position is that even if a stay application has not been filed, before rejecting the appeal the appellant should be given an opportunity to file such an application and consider the same rather than rejecting the appeal. In this case the application for waiver of pre-deposit filed has been rejected on the ground of delay without citing any legal provisions to support the observation of the Commissioner. In the absence of any legal provision prescribing the time limit for filing stay application and having regard to the fact that appellant had filed application for waiver of pre-deposit before the appeal was being considered and personal hearing was granted, I consider that the Commissioner s decision to reject the appeal as not maintainable cannot be sustained. Accordingly the impugned order is set aside and the matter is remanded to the learned Commissioner to consider the application for waiver of pre-deposit in accordance with law. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Delay in filing appeal, rejection of appeal by Commissioner (Appeals) on grounds of non-maintainability, rejection of waiver of pre-deposit application.

Delay in Filing Appeal:
The judgment addresses a delay of 5 days in filing the appeal, attributed to the absence of the authorized signatory. The delay is condoned based on the satisfactory reason provided by the appellant.

Rejection of Appeal by Commissioner (Appeals):
The appellant availed CENVAT credit during a specific period, part of which was deemed ineligible. A show-cause notice was issued to recover the irregularly availed credit, leading to an appeal. The appellant failed to file a stay application for waiver of pre-deposit of penalty initially, but did so before the personal hearing. The Commissioner rejected the appeal on grounds of belated filing of the waiver application, without citing relevant legal provisions. The judgment criticizes the Commissioner's decision, highlighting that the appellant should have been given an opportunity to file the stay application before rejecting the appeal. The lack of legal provisions prescribing a time limit for filing the stay application further weakens the Commissioner's stance. Consequently, the order rejecting the appeal is set aside, and the matter is remanded for reconsideration of the waiver application in accordance with the law.

In conclusion, the judgment addresses issues related to a delay in filing the appeal, rejection of the appeal by the Commissioner (Appeals) due to non-maintainability, and the rejection of the waiver of pre-deposit application. It emphasizes the importance of providing opportunities to rectify procedural errors before outright rejection of appeals, highlighting the need for adherence to legal provisions and fair consideration of applications.