By TIOL News Service

MUMBAI, FEB 04, 2019: WHEN a work appears to be ahead of its time, it is only the time that is behind the work - Jean Cocteau

Facts:

+ An adjudication order came to be passed by the Joint Commissioner, Central Excise, Pune-II against the appellant.

+ This order was served upon the assessee on 17.08.2016 during the absence of the Commercial head.

+ Incidentally, the person in-charge of Excise matter had left his job by then.

+ Since the receipt of the order-in-original was not brought to the notice of the person concerned, the appeal could not be filed within the stipulated time and finally it was filed on 03.01.2017 before the Commissioner(A).

+ Resultantly, there was a delay of 79 days in filing the appeal.

+ The Commissioner(A) refused to condone the delay. In fact, the law does not allow him to condone the delay beyond a period of 30 days.

Section 35(1) of CEA, 1944, proviso reads -

Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days.

The appellant is before the CESTAT and after narrating the facts submits that they have filed the appeal immediately upon their knowledge of the receipt of the order. Reliance is placed on the decision of the apex court in Saral Wire Craft Pvt. Ltd. - 2015-TIOL-154-SC-CX. It is also submitted that justifiable delay may be condoned by the Tribunal.

The AR submitted that the Commissioner (Appeals) has rightly passed the order in not condoning delay beyond 30 days, which is in conformity to the order passed by the Supreme Court in the case of Singh Enterprises - 2007-TIOL-231-SC-CX and, therefore, the impugned order needs no interference by the Tribunal.

The Single Member Bench of Member (Judicial) considered the submissions and observed -

"3. On rival submission of parties, it can be held that there was admitted delay of 79 days inclusive of 30 days condonable period available with the Commissioner but the ground cited by the appellant that the person in charge of Excise matter left the job and the matter could not go to the commercial head of the company who was out of station in connection with audit in Chennai plant appear to be reasonable. Procedure is a handmaid of judiciary system enumerated to put a curb on the uncertainty and bring an end to the litigation but on that score alone, substantial justice cannot be jeopardised."

Concluding that it was fit case where delay can be condoned, the delay of 79 days was condoned and the impugned order was set aside.

The CESTAT remanded the matter to the Commissioner (Appeals) for fresh adjudication.

This order was pronounced on 21.06.2018.

More than a fortnight later (on 10.07.2018), the Member (Judicial) viewed that a rectification by way of addendum was necessitated to give clarity to the Order passed on 21.06.2018 and that was because - Tribunals are under legal obligation to pass speaking and reasoned orders to ensure that decision is reached according to law and not emerged as a result of caprice, whims and fancies as ratio contained in Singh Enterprises judgment referred above has not been brought on record.

Adverting to Section 35C, sub-clause (2) of the CEA, applicable to service tax matters as per Section 86 sub-clause (7), which provides for rectification of orders (by the Tribunal on its own, if it notices the mistake) by way of amendments to be made within six months of the order, the Tribunal adverted to the apex Court decision cited by the AR and inter alia observed thus -

"6. At the outset it has to be pointed out that nowhere in the said Singh Enterprises judgment, jurisdiction of this Tribunal has been questioned as against the order of Commissioner (Appeals)…

7. It is needless to mention here that such condonable period of 30 days beyond the statutory period of appeal, which is given to the Commissioner (Appeals) is found substituted in Section 35B(5) with the word "after the expiry of relevant period" without any specific mention of the days or months to admit such appeal but such provision relates to the appeal filed /to be filed before the Tribunal and not before the Commissioner (Appeals). Therefore, from the observation made by the Hon'ble Supreme Court in para 8, it cannot be concluded that reference to this Tribunal is made in the judgement in connection with the matter of refusal by the Commissioner (Appeals) to condone the delay.

8. Be that as it may, from the ratio of Singh Enterprises it cannot be said that only because prescribed period of limitation was over, the Hon'ble Supreme Court declined to interfere in the order since the ground taken by the appellant therein, viz. closure of factory and lack of experience in business attributed to such delay, was not acceptable to the Hon'ble Supreme Court as the Division bench had observed that the "causes shown for condonation have no acceptable value."

The CESTAT further observed -

"12. From the bare text of Section 35C it can very well be said that without modifying or annulling the decision appealed against, the tribunal can refer the case back to the authority which passed such decision with directions as the appellate tribunal may think fit including a direction for fresh adjudication or decision. Therefore, even though no irregularity in dismissing the appeal on ground of limitation may be found from the order of the Commissioner (Appeals) still then the same needs to be adjudicated by him as spirit of the entire formation of Appellate Tribunal precludes the Tribunal to hold a finding directly against the order of the first adjudicating authority without the same being scrutinised by the Commissioner (Appeals) under Section 35(A), may be under Sub-section (4), and such scrutinisation by Commissioner (Appeals) cannot be done unless delay is condoned at this end in invoking the principle s of saving clause 29 of the Indian Limitation Act read with Section 5 of the same."?

In fine, the delay of 79 days in filing appeal before the Commissioner (Appeals) was condoned and the matter was remanded back to the Commissioner (Appeals) for fresh adjudication.

In passing: Be yourself. The world worships the original. - Jean Cocteau

(See 2019-TIOL-370-CESTAT-MUM)