2017 (3) TMI 1005 - HC - Central Excise

Condonation of delay - time limitation - Refund of accumulated CENVAT credit - Held that - when the matter is remanded for reconsideration, the question of limitation may also be required to be considered. But in any event, remand is by exercise of discretion, no point of law would arise at this stage as sought to be canvassed - the appeals on merits cannot be accepted since the question is neither decided by the Tribunal nor would arise for consideration in the present appeals and the appeal deserve to be dismissed - appeal dismissed - decided against appellant.

Summary

Issues: Delay in filing appeals, applicability of Section 11B of the Central Excise Act, 1944 to refund of service tax, discretion exercised by the Tribunal in remanding the matter.

Delay in filing appeals:
The High Court noted a delay of 283 days in filing the appeals and decided to hear the counsel for the appellant on the merits of the appeals despite the delay. The Court emphasized that no useful purpose would be served by taking a lenient view on the aspect of delay and then considering the merits of the appeals at a later stage. Consequently, the Court dismissed the application for condonation of delay as well as the appeals.

Applicability of Section 11B of the Central Excise Act, 1944 to refund of service tax:
The appellant contended that the claim of refund was barred by the proviso to Section 11B of the Central Excise Act, 1944, which is also applicable to the refund of service tax. The appellant referred to a previous case where it was observed that the limitation provided under Section 11B does not apply for refund of accumulated Cenvat credit. However, the Court noted that different High Courts have taken a different view on this matter. The Court acknowledged that the question of limitation may need to be considered when the matter is remanded for reconsideration but concluded that since the Tribunal's remand was by exercise of discretion, no point of law would arise for consideration at that stage.

Discretion exercised by the Tribunal in remanding the matter:
The appeals were directed against an order passed by the Tribunal, which remanded the matter to the authority for reconsideration in accordance with the law. The Court observed that the Tribunal had exercised its discretion in remanding the matter, and it could not be said that any substantial question of law would arise for consideration at that stage as argued by the appellant. The Court held that since the question was neither decided by the Tribunal nor would arise for consideration in the present appeals, the appeals could not be accepted and deserved to be dismissed.

In conclusion, the High Court dismissed the appeals due to the delay in filing them, the discretionary remand by the Tribunal, and the lack of a substantial question of law for consideration at that stage. The Court emphasized the importance of not taking a lenient view on delays and reiterated the need to consider all legal aspects thoroughly before accepting appeals on their merits.