2019 (1) TMI 507 – CESTAT MUMBAI – TMI – Condonation of delay in filing of appeal – non-payment of pre deposit – section 35F of the Central Excise Act – Held that:- Date of receipt being admitted by the Commissioner himself to be 15.06.2017 and appeal being filed on 08.09.2017, delay is only about 3 weeks over the normal appeal period and not even a month which was within the condonable period available with the Commissioner – Further having, been acknowledged that possession of appellant office was taken over by the Punjab National Bank authorized officer during the corresponding period, the Commissioner (Appeals) should not have refused to condone the delay on such narrow technical ground that flat number is different since there might be possibility that both the flats were being possessed by the appellant – delay condoned.
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Non-payment of statutory pre deposit amount for filing of appeal – Held that:- The appellant contention that 80 per cent of duty liability has been discha
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y of 3 weeks in filing appeal before the Commissioner (Appeals-III) is condoned at this end – Pre-deposit having been made at this end, matter is remanded back to him for re-adjudication – appeal allowed. – Appeal No. ST/87331,87352/18 – A/88133-88134/2018 – Dated:- 18-12-2018 – Dr. Suvendu Kumar Pati, Member (Judicial) Shri Devender Jain, Advocate for the appellant Shri O.S. Shivdikar, AC (AR) for the respondent 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 appeal before the Commissioner (Appeals) within two months of receipt of the order but filed the same within 30 days thereafter with a prayer f
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g 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 ₹ 7,72,500/- and ₹ 13,28,013/- respectively against availment of cenvat credit on capital goods not recorded in the CC register 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 8 of the OIA that OIOs were received admittedly by the appellant on 15.06.2017 that is after 9 months 3 days and 14 days of the orders passed on 20.08.2014 and 31.08.2016. It was also recorded by the Commissioner appeals that no documentary evidence was furnished by the appellant concerning the receipt of OIOs. At the same t
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ch 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 scrutiny 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. two weeks before 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 referred 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.T. 163 (S.C.) a
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sideration are pitted against each other, cause of 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 sufficien
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the appeals and pronounces orders under Central Excise 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
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