Delta Shoes Private Ltd vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.ST/S/40948/2014 & ST/40711/2014

[Arising out of Order-in-Appeal No.19/2014 (M-III) ST dt.9.1.2014 passed by the Commissioner of Central Excise (Appeals), Chennai]

Delta Shoes Private Ltd. Appellant

Versus

Commissioner of Central Excise, Chennai-III Respondent

Appearance:

Shri A. Raghunathan Consultant For the Appellant

Shri K.P.Muralidharan, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 8.6.2015

FINAL ORDER No.40618/2015

Per R. Periasami

Since the issue lies on a narrow compass, after dispensing with the requirement of predeposit, the main appeal is taken up for hearing and disposal.

2. The short issue involved in this appeal is that Commissioner (Appeals) in his impugned order dt. 9.1.2014 dismissed their appeal on limitation on the ground that appeal was filed after a delay of 129 days beyond the permissible period of 90 days.

3. Ld. Consultant on behalf of the appellant submits that OIO was passed on 5.9.2011 and it was received by the appellant on 12.10.2011. He has filed affidavit and also proof of receipt of order by their office. He submits that appeal was filed on 12.1.2012. He submits that as per the pre-amended Section 85(3), the appellants are allowed to file appeal before Commissioner (Appeals) within 3 months initially and further extended period of 3 months subject to satisfaction of Commissioner (Appeals). He submits in this case, Commissioner (Appeals) has wrongly dismissed the appeal by taking the newly amended provisions of Section 35 of the Central Excise Act where the time limit was reduced to 60 days and extended to another 30 days. He also submits that as per the Explanation, they are eligible under old provision and the appeal was correctly filed within the time limit as per Section 35. Ld. Consultant also submits that they have paid entire service tax amount of Rs.1,26,328/- vide T.R.6 challan dt. 16.3.2015. He relied on the following case law :-

(i) K.Thakore and Associates Vs CCE 2003 (161) ELT 670 (Tri.-Mumbai)

(ii) Hoosein Kasam Dada (India) Ltd. Vs State of M.P. & Others -1983 (13) ELT 1277 (SC)

3. Heard ld. A.R.

4. After hearing both sides, we find the OIO was dt. 5.9.2011 and they received on 12.10.2011 and appellant filed appeal before Commissioner (Appeals) on 12.1.2012. On perusal of the impugned order, it is seen that the LAA dismissed appeal on limitation by applying the provisions of new Section 35 of the Central Excise Act where the period is reduced from 3 months to 60 days. As per pre-amended provisions of Section 35 (30 of Central Excise Act appeal shall be presented within 3 months from the date of receipt of order and Commissioner (Appeals) may if he is satisfied allow further period of 3 months. In the present case, appellant filed appeal on 12.10.2011 immediately after three months and it well within the powers of Commissioner (Appeals) with a delay of one day which is condoned. Therefore, we find that appeal has been filed before Commissioner (Appeals) is well within the time limit as per Section 35 of the Act during the relevant period as the OIO was dt. 5.9.2011 and the amended provisions introduced w.e.f. 28.5.2012. Accordingly, we set aside the impugned order and allow the appeal by way of remand to Commissioner (Appeals) who shall decide the issue on merit after extending a reasonable opportunity to the appellant. Appeal is allowed by remand. Stay application gets disposed of.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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