2018 (10) TMI 97 – CESTAT MUMBAI – TMI – Belated filing of appeal – non-payment of pre deposit – case of appellant is that they could not file the said appeal before the Commissioner (Appeals) within two months of receipt of the order but filed the same within 30 days thereafter with a prayer for condonation of delay explaining sufficient grounds for such delay but that was not accepted by the Commissioner (appeals).
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Held that:- Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions – Since this Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of the adjudicating authority, it is a fit case which necess
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llan as exhibit A is filed at this end, no further discussion is required to be done on pre deposit.
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The appeal is allowed and the delay of 3 weeks in filing appeal before the Commissioner (Appeals-III) is condoned at this end – Predeposit having been made at this end, matter is remanded back to him for re-adjudication – application allowed. – ST/87354/2018 – A/87453/2018 – Dated:- 27-9-2018 – Dr. Suvendu Kumar Pati, Member (Judicial) For the Applicant : Shri Devendra Jain, C.A. For the Respondent : Shri Dilip Shinde, Assistant Commissioner (AR) ORDER Disposal of two appeals filed by the appellant before the Commissioner (Appeals III), GST & CX, Mumbai against adjudication orders confirming duty demand, interests and penalties solely on the ground of belated filing and non-payment of pre deposit is the subject matter of the appeal before this Tribunal. 2. Contention of the appellant, as submitted by Learned C.A. Shri Devendra Jain, is that Appellant could not file the said ap
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. Dilip Shinde submitted that Orders-in-Original were passed on 30/31.08.2016 but the appellant filed this appeal on 09.08.2017 claiming that it was received at their end on 15.06.2017 for which the Commissioner had rightly given his finding. Further he disputed the contention of the appellant that substantial portion of the duty liability was discharged. Since both the OIOs and OIA revealed that duty demand of ₹ 7,69,009/- and ₹ 73,28,013/- were confirmed by those orders along with interests and penalties, Section 35F bars the appeal bereft of pre deposit for which interference by this appellate court is uncalled for. 4. Perused the case record including the OIA. It is found from paragraph 18 of the OIA that OIOs were received admittedly by the appellant on 15.06.2017 that is after 9 months 14 days of the orders passed on 30/31.08.2016. It was also recorded by the Commissioner appeals that no documentary evidence was furnished by the appellant concerning the receipt of OIO
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l Excise Act which has made mandatory provision concerning pre deposit of 7.5% duty demand and penalty and the same had not been complied with. 5. On close summary of the documents on record and OIA, it is apparently clear that acknowledgment of receipt of orders in original by the appellant vide exhibit E contains the date of receipt as 15.06.2017. The ground of rejection of delay condonation petition by the Commissioner (Appeals) indicates that appellant had applied to the Department in writing on 24.08.2017 i.e. after two weeks of filling of appeal, as held by Commissioner, but no finding is forthcoming as to if any previous proof of delivery of OIOs on the appellant was established. Therefore the date refered in the acknowledgment vide Exhibit E has to be accepted as the date of delivery of OIOs on the appellant. The Commissioner has relied upon the decision of the Hon ble Supreme Court pronounced in respect of Singh Enterprises Vs. Commissioner of C. Ex., Jamshedpur 2008 (221) E.L
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substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay and there is no presumption that delay was occasioned deliberately. 6. In another decision, reported in (2001) 9 SCC 106, Hon ble Supreme Court has observed that where the delay is of a few days, the court should adopt a liberal approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Whether the delay is inordinate, the consideration of prejudice to the opposite party will be a relevant factor calling for a more cautious approach, but in the latter case where the delay is of few days, no such consideration may arise, and such a case deserves a liberal approach. The Hon ble Supreme Court also observed that in exercise of discretion on the facts of each case, keeping in mind that in construing the expression sufficient cause , the principle of advancing substantial ju
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ise Act 1994 and the Central Excise Rules. Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation. 9. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. Hon ble Supreme Court in Saheli Leasing & Industry Ltd. – 2010 (253) ELT 705 (SC) also proposed a guideline to be followed by quasi judici
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