M/S. Sumedh Refreshments vs Commissioner Of Central Excise, ...
- CitationAppeal No. 53/2013/BM
Ratio decidendi
The rule this decision rests on
The Commissioner (Appeals) has no power to condone a delay in filing an appeal beyond the period prescribed under the statute, the thirty-day period plus the one-month condonable extension, as laid down by the Supreme Court in Singh Enterprises. Where the date of actual receipt of the impugned order is disputed and was not examined by the first appellate authority, the matter is to be remanded to that authority for factual verification of the date of receipt, rather than the appeal being decided on the point of limitation on the date reflected in the appellant's form. The question whether one day is to be excluded from the limitation period, both for the initial period and for the condonable extension, was not raised before the first appellate authority and is to be considered by it on remand in the light of the Tribunal's decision in Kouni Travels.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 53/2013/BM dated 02/04/2013 passed by Commissioner of Central Excise, BELGAUM.]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
M/s. Sumedh Refreshments Sattur, SDM Hospital, DHARAWAD - 580009 KARNATAKA Appellant(s)
Versus
Commissioner of Central Excise, Customs and Service Tax BELGAUM No. 71, CLUB ROAD, CENTRAL EXCISE BUILDING, BELGAUM 590 001. KARNATAKA Respondent(s)
Appearance:
A.R.BHAT ADVOCATE R.No. 11, RAGHAVENDRA BHAVAN, N.C.M, HUBLI-580029 For the Appellant
Mr. N. Jagadish, Superintendent (AR) For the Respondent
Date of Hearing: 04/06/2015
Date of Decision: 04/06/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 21293 / 2015
Per : ARCHANA WADHWA
After dispensing with the condition of pre-deposit, we proceed to decide the appeal itself inasmuch as the Commissioner (A) has dismissed the appeal on the point of time bar.
2. After hearing both the sides for some time, we find that the order passed by the original adjudicating authority impugned before Commissioner (A) was passed on 29.8.2012. The appellant in their Form ST-IV i.e. appeal filed before Commissioner (A) reflected the date of receipt as 31.8.2012. As per the said date of receipt, the limitation expired on or around 31.10.2012, if the date of receipt of the order is excluded. Thereafter a period of one month is available to Commissioner (A) for which period he can condone the delay. The said period expired according to the Revenue on 30.11.2012 inasmuch as appeal was filed on 3.12.2012, the same is admittedly beyond the period for which Commissioner (A) has powers to condone.
3. On the other hand, it is the appellants contention that they reflected the date of receipt as 31.8.2012 roughly based on assumptions and subsequently they have verified the factual position, which reflected the date of receipt as 1.9.2012. For the said purpose they are relying upon the letter of the Superintendent (Technical) dated 27.6.2014 which refers to the seal of the postal authorities showing the receipt as 1.9.2012.
In any case, it is the contention of the learned AR that one day i.e., either day of receipt or day of filing has to be excluded from the normal period of limitation for the purpose of filing the appeal. Further, if a fresh period of one month for which the delay can be condoned starts running, one day is again required to be excluded. For the said purpose, he has relied upon the Tribunals decision in the case of Kouni Travels Pvt. Ltd. vs. CCE, Bangalore: 2010 (17) S.T.R. 442 (Tri.-Bang.) (para 7 of the said decision). He submits that if the said decision is taken into account, the period to file appeal would expire on 1.12.2012 and 1st and 2nd of December being holidays the appeal was filed on 3rd December 2012 and as such within the condonable period of one month.
4. We find that the legal issue is no more res integra and it stands decided by the Honble Supreme Court in the case of Singh Enterprises vs. CCE, Jameshpur: 2008 (221) E.L.T. 163 (S.C.) that Commissioner (A) has no powers to condone the delay beyond the period prescribed under the Act. However, the dispute in the present appeal relates to the date of actual receipt of the order impugned before him and the computation of the periods. From the impugned order it is seen that though the appellants were awarded an opportunity of personal hearing but the same was not availed by them and, the Commissioner (A) has simpliciter rejected the appeal on the point of time bar after taking note of the date of receipt as reflected by the assessee in their ST-4 form. Other legal issues i.e., inclusion of one day either for the first period of 2 months or for the further extended period of one month was not raised before him. As such, we are of the view that matter is required to be remanded to the Commissioner (A) for verification of the appellants claim that the order impugned before him was actually received on 1.9.2012 and not on 31.8.2012. Further, the legal issue of exclusion of one day for computing the periods would also be considered by him in the light of declaration of law referred in the above decision.
Stay petition as also appeal gets disposed of in above manner.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 3
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