M/S. B.S.N.L vs Commissioner Of Central Excise & ...

(Arising out of Order-in-Appeal No.66/GHY/CE(A)/GHY/2013 dated 08.10.2013 passed by the Commissioner(Appeals) of Customs & Central Excise, Guwahati.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)

1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. B.S.N.L. Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise & Service Tax, Dibrugarh Respondent (s)

Appearance:

Shri S.Das, C.A. for the Appellant (s)

Shri A.Roy, Supdt.(A.R.) for the Respondent (s)

CORAM:

Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing:- 23.03.2015 Date of Pronouncement :- 23.03.2015

ORDER NO.FO/A/75160/2015

Per Dr. D.M. Misra.

1. This is an application seeking waiver of pre-deposit of Service Tax/CENVAT Credit of Rs.34.36 Lakhs and equal amount of penalty imposed under section 78 and other provisions of the Finance Act, 1994.

2. At the outset the ld.A.R. for the Revenue submits that the ld.Comissioner(Appeals) has dismissed the appeal mainly on two grounds. Firstly, there has been an inordinate delay of 277 days in filing the appeal before him and secondly the appeal was not complete inasmuch as the authorized signatory has not signed the appeal. On the first issue, the ld.A.R. for the Revenue submits that by a report dated 07.01.2015, received from the Commissioner of Central excise, Guwahati, the order has been sent by regd. Post with A.D. to the applicant and not returned as undelivered. Therefore, the Ld.Commissioner(Appeals) has rightly observed that the order has been communicated to the Appellant and the Appeal was filed late. He submits that since the appeal was filed beyond the condonable limit of 3 months prescribed under section 85 of the Finance Act, 1994, the appeal is liable to be dismissed in view of the judgement of the Honble Supreme Court in the case of Singh Enterprises vs. Commr. Of Central Excise, Jamshedpur  2008 (221) ELT 163(SC).

3. We find that in the present case, the appeal was filed by the appellant beyond the statutory period of three months and the condonable period of three months prescribed under section 85 of the Finance Act, 1994. Hence, in view of the judgement of the Honble Supreme Court in the case of Singh Enterprises (supra), the Ld.Commissioner(Appeals) has no power to condone the delay beyond the period of three months in addition to the statutory limit of three months as prescribed under section 85 of the Finance Act, 1994. Accordingly, the appeal is dismissed. Stay Petition disposed of.

(Pronounced and dictated in the open court.)

SD/ SD/

(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm

3 Appeal No.S.T. 71437/13