Whether an rebate appeal dismissed as time barred by Commissioner Appeals without considering merits be preferred to Tribunal?

PJ-Case law-2012/13-1563

Case:-DISHA FOODS PVT. LTD. Versus COMMISSIONER OF C. EX., HYDERABAD

Citation:-2013 (291) E.L.T. 61 (Tri. - Bang.)

Brief facts:-The appellant had claimed rebate of central excise duty on goods exported to various countries. The original authority sanctioned the claim to the extent of some amount and rejected the balance claim. The party was not aggrieved by rejection of rebate claim. As regards rejection of rebate claim, they preferred an appeal to the Commissioner (Appeals). There was a delay of four days in the filing of that appeal. The party applied for its condonation on certain grounds. The learned Commissioner (Appeals) was not impressed with the reasons stated for the delay of the appeal. In the result, the appeal against the order-in-original came to be dismissed as time-barred. The present appeal of the party is directed against the appellate Commissioner's order.

Appellant’s Contention:-The learned counsel for the appellant submits that this appeal was filed as advised by the Commissioner (Appeals) himself. In this connection, he refers to the preamble to the impugned order, which contains the following advice
"Any person aggrieved by this order, may under Section 35B of the Act, read with Rule 6 of the Rules file an appeal to the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench,”
The learned counsel also explains the circumstances in which the appeal against the order-in-original happened to be delayed by four days. He prays for condonation of this delay and remand of the case to the Commissioner (Appeals) for a decision on merits.

Respondent’s Contention:-The learned Superintendent (AR) raises a preliminary objection. He submits that, as the impugned order relates to rebate of duty of excise on goods exported to countries outside India, the appeal is barred by clause (b) of the first proviso to sub-section (1) of Section 35B of the Central Excise Act. It is submitted that the remedy available to the appellant is an application to the Central Government under Section 35EE of the Act (revision by Central Government). Accordingly it is urged that the appeal be dismissed as not maintainable.

Reasoning of Judgment:-After hearing both sides & considered the documents submitted by both the parties, it is found that as the impugned order is an order passed by the Commissioner (Appeals) under Section 35A, it needs to be examined as to whether this appeal is barred by clause (b) of the proviso. If the impugned order can be considered as an order relating to a rebate of duty of excise on goods exported to countries outside India, then it has to be held that the appeal is not maintainable before this Appellate Tribunal and that the remedy available to the appellant is to file a revision application with the Central Government under Section 35EE of the Act. Sub-section (1). It is also added that the impugned order in this case did not deal with any rebate claim. In that order, the learned Commissioner (Appeals) was considering whether the delay of four days involved in the filing of appeal by the assessee against the Assistant Commissioner's order was condonable under Section 35 of the Act. He refused to condone the delay and dismissed the delay condonation application filed by the party. Consequently, the appeal against the Assistant Commissioner's order also came to be dismissed as time-barred. The appellate Commissioner's order did not even refer to the substantive issue (whether the rejection of rebate claim by the original authority was sustainable or not). The issue did not figure in the appellate Commissioner's order at all. Therefore, tribunal is of the considered view that the impugned order can neither be considered as an "order relating to rebate of duty of excise on goods exported to any country or territory outside India", nor as an "order of the nature referred to in the first proviso to sub-section (1) of Section 35B of the Act". The impugned order is an order on maintainability of the appeal only inasmuch as the learned Commissioner (Appeals) held the appeal to be time-barred and hence not maintainable. Such an order, in my considered view, is appealable to this Tribunal under Section 35B(1) of the Act.It is trite law that the legislative intent should be deciphered from a conjoint reading of all the relevant provisions of the statute. The provisions have to be construed in a manner which would advance justice in a given set of facts and not in a manner which leaves the aggrieved party remediless. Bearing this cardinal principle of interpretation in mind, one must look at this case from another angle. Section 35C of the Act empowers this Appellate Tribunal to confirm, modify or annul the decision or order appealed against. It also authorizes this Appellate Tribunal to remand the case to the lower authority for good reasons. On the other hand, Section 35EE of the Act does not authorize the Central Government to remand any rebate case to the Commissioner (Appeals). On the facts of the present case, this Appellate Tribunal can remand the case to the lower appellate authority for a decision on merits if it is found that the aforesaid delay of four days involved in the filing of appeal before him against the Assistant Commissioner's order is liable to be condoned. On the other hand, the Central Government functioning under Section 35EE of the Act cannot remand the case to the Commissioner (Appeals) upon identical finding. In other words, on the peculiar facts of this case, the assessee is rendered remediless if this appeal is dismissed as not maintainable. In the result, the preliminary objection raised by the learned Superintendent (AR) stands overruled. This appeal is maintainable inasmuch as the appellant has not raised any contention in relation to the rebate claim and has only raised grounds for condonation of the aforesaid delay of the appeal preferred to the Commissioner (Appeals). After carefully considering the grounds of this appeal, Tribunal was of the view that the refusal by the Commissioner (Appeals) to condone the above delay is unjust. The delay is liable to be condoned. Therefore, Tribunal set aside the impugned order and allow this appeal by way of remand with a request to the Commissioner (Appeals) to pass a speaking order on the substantive issue after condoning the above delay and giving the party a reasonable opportunity of being personally heard on the said issue.

Decision:-Appeal Allowed.

Comment:-The analogy drawn from this case is that although the appeal for rebate claim lies to the revisionary authority after the dismissal of appeal by the first appellate authority, i.e., Commissioner Appeals, but in the present case the appeal filed to the Commissioner Appeals by the appellant was rejected on account of delay of 4 days in filing the appeal without even considering the merits of the case. In such circumstances, it was concluded that the appeal against the order rejecting the condonation of delay in filing the appeal was maintainable to the Tribunal.

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PJ-Case law-2012/13-1563

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