2018 (2) TMI 1198 - HC - Customs

Condonation of delay - Whether the CESTAT was right in passing the order dated 2nd February 2017 and dismissing the application for rectification on the ground that the Tribunal does not have any power of review and hear the appeal on merits notwithstanding the fact that the appellant had filed an application that there was error apparent on the face of the order dated 20th October 2014? Held that - there was an error apparent in the order dated 20th October 2014 for the issue was whether the appeal was preferred within limitation period and not whether delay in filing of the appeal should be condoned. The appellant had clearly contended that there was no issue or question of condonation of delay as the starting point of limitation would be the date of communication of the order to the appellant and not the date on which the order under challenge was passed - The primary aspect which has to be examined and answered is the date on which the order-in-original dated 20th March 2007 was communicated and served on the appellant and whether the stand of the appellant that this order was communicated and served for the first time on 25th February 2013 was correct. It is case of the appellant that the appeal was not time barred. In view of the stand of the assessee the Tribunal would have to decide whether or not the appeal preferred by the appellant was within limitation. Issue would also arise whether limitation period would commence or taken from the date of the impugned order date on which the order was issued or sent by post or the date on which the order was served. The second aspect/issue is a question of law. Factual and legal aspects are interconnected. In case the Tribunal comes to the conclusion that the date of the order or the date of issue would be the starting point of limitation then the Tribunal would have to examine and decide the question of condonation of delay. Partly decided in favor of assessee and part matter on remand.

Issues involved:
1. Appeal under Section 130A of the Customs Act, 1962 challenging orders passed by the Customs, Excise and Service Tax Appellate Tribunal.
2. Whether the Tribunal was right in dismissing the application for rectification based on the power of review.
3. Peculiar factual matrix of the case.
4. Dismissal of the appeal as barred by limitation and subsequent applications for restoration.
5. Dismissal of the application for condonation of delay by the Tribunal.
6. Review of the Tribunal's order and remand for further examination.

Detailed Analysis:
1. The appellant filed an appeal under Section 130A of the Customs Act, 1962, challenging orders passed by the Customs, Excise and Service Tax Appellate Tribunal. The appeal raised questions regarding the Tribunal's authority to review orders and hear appeals on merits, particularly in cases where errors were apparent on the face of the order (para 3).

2. The Tribunal dismissed the application for rectification based on the lack of power to review its own orders. The appellant contended that the appeal was filed within the prescribed period and there was an error in the Tribunal's decision regarding the limitation period (para 8).

3. The case had a peculiar factual matrix where the appellant claimed unawareness of the order, leading to delays and subsequent dismissal of the appeal by the Tribunal (para 5).

4. The appeal was initially dismissed as barred by limitation, leading to subsequent applications for restoration, which were also met with challenges and dismissals by the Tribunal (paras 6, 9, 13).

5. The Tribunal's decision to dismiss the application for condonation of delay was based on precedents and the lack of power to review its own orders. However, the High Court found the reasoning unsustainable given the unique circumstances of the case (para 14).

6. The High Court partially allowed the appeal, remanding the case to the Tribunal for further examination on whether the appeal was within limitation and related aspects. The Court refrained from delving into the merits, emphasizing that the Tribunal needed to decide the core issues (paras 16, 17).

In conclusion, the High Court's judgment focused on the procedural aspects of the case, highlighting the need for the Tribunal to reexamine the issues related to the limitation period and the communication of the impugned order. The decision underscored the importance of factual and legal considerations in determining the appeal's validity, leading to a remand for further review by the Tribunal.

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