M/s. Omkareshwar Engineering Versus CCGST & CX, Mumbai
Central Excise
2019 (1) TMI 703 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 11-1-2019
Application No. E/COD/86540/2018, Appeal No. E/88856/2018 – A/85063/2019
Central Excise
Dr. Suvendu Kumar Pati, Member (Judicial)
Shri S.V. Nair, Advocate for the appellant
Shri Anil Chaudhary, AC (AR) for the respondent
ORDER
COD application which was heard on 17.12.2018 is taken up for final order.
2. The contention of the applicant is that there was labour unrest and strike for which staff and workers were not cooperating the management and due to such non-cooperation attitude appellant was unable to trace the correct date of receipt of impugned order as the same was received by staff from whom the order was recovered and appeal was filed that caused delay of 38 days.
3. Learned counsel for the appellant, in referring to copies of police report etc. annexed to COD vide exhibit A pleaded that those documents wo
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d document which indicated that there was strike and unrest in the factory and jurisdiction police station namely Dahanu and Dy. Commissioner of Labour, Boisar were intimated by the appellant regarding such unrest.
6. Appellant claims that the copy of the order of the Commissioner (Appeals) is served on one staff contrary to the Rule which is contrary to the decision of the Hon'ble High Court of Chattisgarh at Bilaspur reported in 2017 (345) ELT 357 (Chattisgarh) and the same is miscarriage of justice as pointed out in the judgment of the Hon'ble Supreme Court in the decision reported in 2015 (322) ELT 192 (SC).
7. Be that as it may, the delay of 38 days in filing appeal which appellant attributes to the strike and unrest in its factory appears to be sufficient cause for the purpose of Condonation. It has been held by the Hon'ble Supreme Court in 1987 (28) ELT 15 that when substantial justice and technical consideration are pitted against each other, cause of substantial just
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of prime importance.
9. I therefore condone the delay and admit the appeal for hearing. 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.
10. 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 propose
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