Whether the order rejecting the appeal on the ground of delay of 2 days is sustainable?

PJ/CASE LAW/2016-17/3037

Case:ROTOMAC GLOBAL PVT. LTD. Vs COMMISSIONER OF CENTRAL EXCISE, KANPUR

Citation: 2015 (325) E.L.T. 524 (All.)

Brief Facts:Appellant’s application for refund was rejected by the adjudicating authority. The order was served upon an employee of the appellant in the respondent’s office on 26th June, 2013 and was placed before the appellant on 28th June, 2013. The appellant preferred an appeal on 26th August, 2013 under Section 85 of the Finance Act (2), 1994 before Commissioner (Appeal).
This appeal was however, rejected by the Commissioner (Appeals) by its order dated 25th September, 2013 on the ground of limitation. The Commissioner (Appeals) held that there was delay of two days and that the appellant had misrepresented the fact that the order-in-original was served on 28th June, 2013, whereas it was actually served upon his employee on 26th June, 2013 and on this misrepresentation, the appeal was dismissed as being barred by limitation. The appellant, being aggrieved, filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal, which was also rejected on the same ground by an order dated 6th January, 2015. The appellant, being aggrieved, has filed the present appeal under Section 35G of the Central Excise Act, 1944.

Reasoning of Judgement:The appeal was presented within the stipulated period of 60 days as provided under Section 85 of the Finance Act (2), 1994 and that there was no misrepresentation. Section 85 of the Finance Act provides as under :
“Section 85. Appeals to the Commissioner of Central Excise (Appeals). -
(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).
(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.
(3) …..
(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter :
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.”
A perusal of Section 85(3A) of the Finance Act (2) of 1994 indicates that the appeal has to be presented within two months from the date of receipt of the decision or order.
The order-in-original was served upon an employee of the appellant on 26th June, 2013 under Section 35-O of the Central Excise Act provides the proceeding for computing the period of limitation prescribed for an appeal and stipulates that the day on which the order was served has to be excluded. Therefore, while counting 60 days, 26th June, 2013 has to be excluded while counting the period of limitation.
They also find that from a perusal of page 63 of the paper book that the appeal was served in the office on 26th August, 2013. The finding of the Tribunal that the appeal was presented on 27th August, 2013 is against the material on record. Therefore, of the opinion that the appeal was filed within 60 days.
Further, they also find that the first appellate authority as well as the Tribunal committed a manifest error of law in holding that the appellant had misrepresented the fact that the order was served upon them on 28th June, 2013.
The appellant in paragraphs 1 to 1.8 of the grounds of appeal before the Tribunal has clearly explained as to how he had treated the original order to have been served upon them on 28th June, 2013. Such explanation given only explains as to how the appellant had treated the order to have been served upon them on 28th June, 2013. Such explanation given clearly indicates that there was no misrepresentation to the effect that the order was not served on 26th June, 2013 but on 28th June, 2013.
Even otherwise, they are of the opinion that a liberal approach should have been adopted by the Tribunal as well as by the appellate authority. The delay of two days was not fatal and a liberal approach should have been adopted in handling the matter.
11. Consequently, the order of the first appellate authority as well as the order of the Tribunal cannot be sustained and are quashed. The appeal is allowed at the admission stage itself. The matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after hearing all the parties concerned.

Decision: Appeal Allowed

Comment: In this case, the appeal of assessee was rejected by the Commissioner (A) as well as CESTAT on the ground that appeal was not filed in time and there was a delay of 2 days.
The High Court has decided the matter in favour of assessee and held that the day on which the order was served has to be excluded. Therefore the appeal was filed in time and there was no delay in filing appeal. Further it was held that a liberal approach should have been adopted by the Tribunal as well as by the appellate authority. The delay of two days was not fatal and a liberal approach should have been adopted in handling the matter.

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PJ/CASE LAW/2016-17/3037

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