2025 (4) TMI 760 - AT - Central Excise

Rejection of appeal on the ground of being time barred - HELD THAT - The appellant has produced before me a copy of appeal filed before the Assistant Commissioner Mohali on 02.05.2018 in the form of Form No. E.A. 1 which is a form of appeal before the Commissioner (Appeals) under Section 35. The appellant has also produced the proof of Challan dated 01.05.2018 depositing mandatory pre-deposit of 7.5%. It is also found that as per the appellant he has also sent the copy of the appeal to the Commissioner (Appeals) but the same was not proved by furnishing the proof of the receipt in the office of Commissioner (Appeals). It is also noted that when the copy of the appeal was filed in the office of Assistant Commissioner Mohali it was the duty of Assistant Commissioner to forward the same to the office of Commissioner (Appeals) but the same was not done and the learned Commissioner (Appeals) rejected the appeal of the appellant being time barred holding that the appellant filed the appeal on 29.07.2021 before him. Division Bench of the Tribunal in the case of Premier Car Sales Ltd 2018 (12) TMI 2014 - CESTAT ALLAHABAD has remanded the matter back to the Commissioner (Appeals) in identical facts wherein also the appellant filed appeal before the Assistant Commissioner. Similarly by following the ratio of the said decision the present matter also remanded back to the learned Commissioner (Appeals) to find out whether the appellant has filed copy of the appeal alongwith proof of pre-deposit before the Assistant Commissioner Mohali and if the same is found to be valid then the period during which the appeal was kept pending with the Assistant Commissioner should be excluded from the computation of the period prescribed for filing the appeal before the Commissioner (Appeals). Conclusion - Matter remanded back to the Commissioner (Appeals) with a direction to decide the issue of limitation afresh after considering the material placed on record by the appellant and after affording an opportunity of hearing to the appellant and thereafter pass a reasoned order in accordance with law within the period of two months from the date of receipt of the certified copy of this order. It is further directed that if the appeal is found in time then the same may also decided on merits. Appeal allowed by way of remand.

Summary

ISSUES PRESENTED and CONSIDERED

The primary legal issue considered in this judgment is whether the appeal filed by the appellant was time-barred under Section 35 of the Central Excise Act, 1944. The specific questions include whether the appeal was filed within the statutory period, whether the filing of the appeal with the Assistant Commissioner instead of the Commissioner (Appeals) affects the validity of the filing, and whether the time period during which the appeal was with the Assistant Commissioner can be excluded from the limitation period.

ISSUE-WISE DETAILED ANALYSIS

Relevant Legal Framework and Precedents

The legal framework revolves around Section 35 of the Central Excise Act, 1944, which prescribes the time limit for filing an appeal before the Commissioner (Appeals). The appellant is required to file the appeal within two months from the date of receipt of the order, with a possible extension of one month if the Commissioner (Appeals) condones the delay. Section 14 of the Limitation Act is also relevant, as it allows for the exclusion of time spent in proceedings conducted with due diligence in a wrong forum.

The precedent set by the Division Bench of the Tribunal in the case of Premier Car Sales Ltd vs. Commr of Cus, CE & ST, Kanpur is crucial. In that case, it was held that if an appeal was filed with the Assistant Commissioner, the time during which it was pending there should be excluded from the limitation period.

Court's Interpretation and Reasoning

The Tribunal interpreted that the appellant did indeed file the appeal with the Assistant Commissioner, Mohali, within the statutory period. The Tribunal noted that it was the responsibility of the Assistant Commissioner to forward the appeal to the Commissioner (Appeals). The Tribunal also emphasized the precedent set in the Premier Car Sales Ltd case, which supported the exclusion of the time during which the appeal was pending with the Assistant Commissioner from the limitation period.

Key Evidence and Findings

The appellant provided evidence of filing the appeal in the form of "Form No. E.A. 1" and proof of the mandatory pre-deposit of 7.5% made on 01.05.2018. The Tribunal found that although the appellant claimed to have sent a copy of the appeal to the Commissioner (Appeals), there was no proof of receipt. However, the Tribunal accepted the filing with the Assistant Commissioner as valid for the purpose of calculating the limitation period.

Application of Law to Facts

The Tribunal applied the principles of Section 14 of the Limitation Act and the precedent from Premier Car Sales Ltd to conclude that the appeal was filed within the statutory period when considering the time it was pending with the Assistant Commissioner. The Tribunal found that the Commissioner (Appeals) erred in dismissing the appeal as time-barred without considering this exclusion.

Treatment of Competing Arguments

The Tribunal considered the department's argument that the appeal was filed with the Commissioner (Appeals) only on 29.07.2021 and thus was time-barred. However, it rejected this argument by emphasizing the duty of the Assistant Commissioner to forward the appeal and the applicability of Section 14 of the Limitation Act.

Conclusions

The Tribunal concluded that the appeal should not have been dismissed as time-barred. Instead, the matter should be remanded to the Commissioner (Appeals) to determine whether the appeal was filed with the Assistant Commissioner and, if so, to exclude the time it was pending there from the limitation period.

SIGNIFICANT HOLDINGS

The Tribunal held that "if the appeal was actually filed by the appellant in the office of the Assistant Commissioner, who in any case should have forwarded the same to Commissioner (Appeals) and was pending for three years in his office, the time period for which the appeal was pending in the office of the Assistant Commissioner is required to be excluded from consideration for the purpose of limitation in terms of Section 14 of the Limitation Act."

The core principle established is that the responsibility of forwarding an appeal lies with the office where it was initially filed, and the time spent in such an office should be excluded when calculating the limitation period.

The final determination was to set aside the impugned order and remand the matter back to the Commissioner (Appeals) to decide the issue of limitation afresh, considering the material placed on record by the appellant and after affording an opportunity of hearing to the appellant.