Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

Comments

Print   |    |  Comment

PJ/Case Law/2014-15/2151

Whether appeal filed within 90 days from the date of receipt of delayed communication of order valid?
Case:- GADE TRANSPORT Vs COMMISSIONER OF CENTRAL EXCISE, AURANGABAD
 
 
Citation:-2014-TIOL-341-CESTAT-MUM
 
Brief facts:- The appellant was in appeal against the impugned order wherein the appeal has been dismissed as time barred by the Commissioner (Appeals). The material facts of the case are that the adjudication order was passed on 05.10.2012 which was sent to the appellant through speed post on 23.10.2012 and same was received by the appellant on 27.10.2012 and appellant in the stay order preferred an appeal before the Commissioner (Appeals) on 15.4.2013. The said appeal was dismissed by the ld. Commissioner (Appeals) on the ground as per Section 85(3) of the Finance Act, 1994, the appeal is to be filed within 60 days of the communication of the adjudication order and the period can be extended if the reasons for causing the delay be explained satisfactorily. As appeal was filed beyond the period of 90 days, the appeal was considered beyond the condonable period. Accordingly, appeal was dismissed. Aggrieved from the said order, appeal was before the bench.
 
 
Appellant’s contention:-The appellant contented that though the Adjudication order was not received by the appellant and on persuasion by the department on recovery proceedings, they came to know the Adjudication order was passed, thereafter they approached the department. On receiving certified copy of the Adjudication order on 14.02.2013, they immediately filed the appeal on 15.04.2013 which is within 60 days of the communication of the Adjudication order. Therefore, impugned order should be set aside and appeal shall be allowed. To support this contention, they filed an affidavit and relied on the decision of Wellman Hindustan Ltd. 2010 (261) ELT 706.
 
 
Respondent’s contention:- On the other hand, ld. AR strongly opposed the contention of the appellant and submitted that as the issue involved is of classification, therefore same is the subject matter of the Division Bench, and matter cannot be heard by a Single Member Bench. The case law relied upon by the appellant is not relevant to the facts of the case and same cannot be taken as defence by the appellant.
 
 
Reasoning of judgment:- The honorable judge found that the short issue involved was that whether the order of dismissal of appeal as time barred by the Commissioner (Appeals) was correct in the eyes of law or not. In the impugned order, there was no whisper of classification of the service. Therefore the argument of the AR was not sustainable. Accordingly, same was turned down. Then coming to the issue whether the appeal was time barred or not. It was submitted that they have received the order on 14.02.2013. As they have not received the order before that, and the case law relied by the appellant in Wellman Hindustan Ltd. (supra) where the copy of the order was tendered physically and same was received by someone. Same is the contention of the appellant in the matter in hand, and in support of the same, they have filed an affidavit. When an affidavit has been filed by the appellant and same has not been contravened by the department, affidavit is having an evidential value. Accordingly, it was held that appeal is filed by the appellant within time. Accordingly, impugned order was set aside, and matter is remanded to the Commissioner.
 
Decision:- Appeal allowed by way of remand.
 
Comment:- The gist of the case is that if due to genuine circumstances assessee is unable to file the appeal in 90 days then one chance of defending the case ought to be given in the interest of justice. Accordingly, in the peculiar circumstances of the instant case, the order was received by the assessee only after recovery proceedings were initiated with respect to the order. The assessee was unaware of the order being passed and so the appeal could not be filed within reasonable period of time. Accordingly, it was held that in light of the circumstances and the fact of submission of an affidavit in this regard that carries evidential value is reasonable proof that as soon as the assessee came to know about the order, the appeal was filed. Hence, the appeal was allowed to be admitted even after lapse of substantial period of time. 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com