Whether appeal filed within 90 days from the date of receipt of delayed communication of order valid?

PJ/Case Law/2014-15/2151

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.

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PJ/Case Law/2014-15/2151

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