Delay Mistakenly Counted as 31 Days Instead of 30: CESTAT Condones Delay and Remands to Commissioner (Appeals) [Read Order]

The Allahabad Bench of Customs, Excise and Service Tax Appellate Tribunal ( CESTAT ) remanded the matter to the Commissioner (Appeals) after condoning a delay that was mistakenly calculated as 31 days instead of 30.

Nav Bharat Fertilizers Ltd, appellant-assessee, submitted through counsel that the appeals were filed before the Commissioner (Appeals) within the condonable period of limitation. The adjudication order was received on 05.04.2017, and in terms of Section 9 of the General Clauses Act, 1987, the limitation period commenced from 06.04.2017. This principle was supported by the Supreme Court’s ruling in Tarun Prasad Chatterjee vs. Dinanath Sharma [2000 (8) SCC 649].

As per Section 35(1) of the Central ExciseAct, 1944, the statutory period for filing the appeal was sixty days, which ended on 04.06.2017. The condonable delay period therefore started on 05.06.2017. The appeals were posted on 03.07.2017, and the assessee contended that the date of posting should be treated as the date of filing.

In support of this argument, the assessee relied on the Allahabad High Court’s decision in Jhabboo Lal Kesara Rolling Mills vs. Union of India [1985 (19) E.L.T. 367] and the tribunal’s ruling in Simplex Electronics vs. Collector of Customs [1989 (42) E.L.T. 451 (Tri.)].

A single member bench of P.K Choudhary (Judicial Member) heard both sides and reviewed the records.It noted that the Commissioner (Appeals) had dismissed the appeals on limitation without deciding them on merits. The Order-in-Original was received by the appellant on 05.04.2017, so the 60-day period for filing the appeal ended on 05.06.2017. The appeals were filed on 05.07.2017, falling within the 30-day condonable delay period.

However, the Commissioner (Appeals) wrongly calculated a 31-day delay and refused to condone it. The tribunal found this to be an error, condoned the delay, and remanded the matter back to the Commissioner (Appeals) for a decision on merits.

Both appeals were allowed by way of remand.

Support our journalism by subscribing to Taxscan premium. Follow us on Telegram for quick updates