Calcutta HC Condones 180 days Delay in Filing Excise Appeal, restores matter back to CESTAT [Read Order]

Websol Energy Systems Ltd, the appellant filed appeal under section 35G of the Central Excise Act, 1944 against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, Eastern Regional Bench, Kolkata (Tribunal) in Miscellaneous Application No.289/2007, Stay Petition No.417/2007 and Excise Appeal No.430/2007.

The appellant/assessee filed the appeal before the Tribunal challenging the Order-in-Appeal passed by the Commissioner (Appeal - I), Central Excise, Kolkata. The said appeal was filed by the appellant/assessee challenging the Order-in-Original No.2/Demand/05 dated 25.7.2005 passed by the Assistant Commissioner, Central Excise, Dumdum – 2 Division, Kolkata – III Commissionerate confirming the demand of Rs.3,27,507/- under section 11A of the Act, imposing an equivalent amount of penalty in terms of the provisions of section 11AC and charging interest at appropriate rate under section 11AB. The appellate authority by order dated 31.8.2006 dismissed the appeal.

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Aggrieved by such order, the assessee filed an appeal before the Tribunal. The appeal before the Tribunal was not filed within the period of limitation but there was a delay of 180 days in filing the appeal. An explanation was offered by the assessee stating that the order passed by the appellate authority was received by a dealing assistant who did not bring it to the notice of the management and the dealing assistant left the organisation in December 2006 and the person who was subsequently appointed had traced out the order and the appeal was filed.

The Department did not file any affidavit in opposition before the Tribunal objecting to the reasons given by the assesee for not able to prefer the appeal within the period of limitation. The Department representative opposed the prayer for condonation of delay and stated that the reasons given are baseless and if it is accepted by the Tribunal, it will cause irreparable injury to the revenue.

The court viewed that the delay of 180 days cannot be stated to be inordinate nor the appellant/assessee can be stated to have been not diligent in prosecuting the matter. The appellant had contested the show cause notice issued by the Assistant Commissioner, Central Excise and submitted written submissions before the adjudicating authority and personal hearing which was granted on 18.8.2004 cannot be stated to have been not diligent to put forth their submissions before the adjudicating authority.

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The adjudicating authority having held against the appellant/assessee by passing Order-in-Original dated 25.7.2005, the appellant immediately preferred appeal before the Commissioner (Appeals) contesting the adjudication order on merits. However, the appeal was dismissed by the appellate authority. Against which, the assessee preferred appeal before the Tribunal.

The Chief Justice T.S. Sivagnanam and Justice Chaitali Chatterjee Das viewed that the appellant should be granted an opportunity to contest the matter on merits so as to enable the Tribunal to take a decision on merits after considering the submissions of the appellant/assessee.

The court allowed the appeal and set aside the impugned order passed by the Tribunal. The bench condoned the delay in filing the appeal and the appeal is directed to be restored to the file of the Tribunal to be heard and decided on merits in accordance with law.

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