Whether delay in filing the appeal before Commissioner (Appeals) can be condoned upto 4 years ?

PJ/Case Law /2016-17/3371

Case- GENERAL MANAGER, ORDNANCE FACTORY Versus COMMR. OF CUS., MUMBAI

Citation- 2016 (342) E.L.T. 255 (Tri. - Mumbai)

Brief Facts- The present appeal is against Order-in-Appeal whereby ld. Commissioner (Appeals) rejected the appeal on the ground of delay in filing appeal before him.
Against the Order-in-Original Nos. S/3-25/93 GS 15.12.95//22-8-2000 the appeal was filed before the Commissioner (Appeals) on 2-8-2004 therefore, Commissioner (Appeals) rejected the appeal being time-bar.
Appellant’s Contention- Shri Parag Vyas, ld. Counsel for the appellant submits that Original order was dated 15-12-95 and also dated 22-8-2000 is mentioned. He submits that copy of the order is attested copy whereas it is not signed by the Asstt. Commissioner as on 15-12-2005 and therefore, it is not order which was appealable. Therefore, the ld. Commissioner should not have dismissed the appeal on the ground of time-bar. He further submits that appellant is Government of India factory under Ministry of Defence for this reason also demand confirmed is not leviable.
Respondent’s Contention- Shri Chatru Singh, ld. Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that it is clear from the Order-in-Original that the same was passed on 15-12-1995 thereafter attested copy was issued to the appellant on 22-8-2000 therefore, though the copy of the order bears both the dates, as regard the signing of the order, whenever a copy of the order is issued it is shown as signed by the authority and attested by the officer issuing the copy therefore, there is no dispute that the order was passed and attested copy of the same was provided to the appellant. Therefore, appeal filed in the year 2004 is time-bar and the Commissioner (Appeals) has no power to condone the delay over and above prescribed time limit.
Reasoning of Judgement- The Hon’ble authority have carefully considered the submissions made by both sides and perused the record. They find that fact is not under dispute that order-in-original against which the appellant filed an appeal before the Commissioner (Appeals) was passed on 15-12-1995. The Attested Order copy against which appeal was filed appears to be issued on 22-8-2000, the appeal before the Commissioner (Appeals) was filed on 2-8-2004 therefore, there is clear delay of around four years from the date of issue of even attested copy of the order. The submission of the ld. Counsel that the order is not signed does not hold water for the reason that it is attested copy issued by the department wherein it is clearly mentioned that it is copy of the signed order, secondly if there is dispute impugned order that cannot be raised for dealing with the time in filing appeal before the Commissioner (Appeals). As regard the submission being Government factory there should not be levy of duty is subject matter of the merit of the case, which cannot be raised when the appeal itself is not maintainable being time-bar before the Commissioner (Appeals). As per our above discussion, no substance is found in the appeal therefore, order passed by the Commissioner (Appeals) is legal and proper which does not require any interference, we therefore, uphold the impugned order and dismiss the appeal of the appellant.
Decision- Appeal dismissed.
Comment- The gist of the case is that there is a clear delay of approximately four years from the date of issue of order in filing the appeal against Commissioner (Appeals). But according to section 35 of Central Excise Act 1944, any person aggrieved by order passed under this Act, may appeal to the Commissioner of Central Excise (Appeals) within sixty days from the date of the communication of order and also grant further 30 days if he is satisfied with the cause of assessee and thus the appeal of the assessee was dismissed.
Prepared by- Akshit Bhandari

Comments

PJ/Case Law /2016-17/3371

Post a Comment

Query