M/S. Telecom District Manager vs Commissioner Of Central Excise

[Arising out of Order-In-Appeal No. BPL/EXCUS-000-APP-110-14-15 dated 22/08/2014 passed by Commissioner of Customs, Central Excise, (Appeals), Bhopal ]

For approval and signature:

Honble Mr Ashok Jindal, Member (Judicial)

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 authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Telecom District Manager Appellants

Bharat Sanchar Nigam Ltd.

Vs.

Commissioner of Central Excise Respondent

Bhopal

Appearance:

None for the Appellants

Shri M S Negi, AR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing /decision: 26.08.2015

ORDER NO. FO/ 52704 /2015-Cus (SM)

Per Ashok Jindal :

Heard the learned AR.

2. Perused the record. On perusal of the record, I find that several notices have been issued to the appellant and none appeared on behalf of the appellant on the following dates: 23.1.2015, 30.3.2015, 3.6.2015 and today, i.e. 26.8.2015 despite notice. As the appellant has chose not to appear before this Tribunal to defend their case. Therefore, appeal is taken up for deciding the issue on its own merits.

3. On perusal of the record, I find that the appellant has filed this appeal against the impugned order wherein the learned Commissioner (Appeals) has dismissed their appeal as time barred on the premise that the appeal before the learned Commissioner was filed only on 31.3.2014 whereas the adjudication order was received by the appellant on 4.9.2012, i.e. with a delay of one year and six months. The learned Commissioner (Appeals) has dismissed the appeal on the ground that appeal is filed beyond the time limit prescribed under section 85 of the Finance Act, 1994. Against that order, appellant is before me.

4. The short issue to be decided by me is whether the appeal filed before learned Commissioner (Appeals) was beyond the period prescribed under Finance Act, 1994 or not and if yes, the Commissioner (Appeals) is having the power to condone the delay or not. Section 85 of the Finance Act, 1994 is reproduced below:

85.?Appeals to the Commissioner of Central Excise (Appeals). -

(1) to (3) 

(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to Service Tax, interest or penalty under this Chapter :

PROVIDED?that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.

5. As per the said provision, the appellant is required to file the appeal before learned Commissioner (Appeals) within a period of 2 months and the period can be extended for further one month on being satisfied and the learned Commissioner (Appeals) has reasons for causing delay is satisfactory. Beyond the said period, the learned Commissioner (Appeals) have no power to condone the delay. Admittedly, in this case, the appeal has been filed after one year and six months. Therefore, learned Commissioner has rightly dismissed the appeal as time barred as held by the Honble High Court of Delhi in the case of Agrawal Construction vs. CE, Nagpur [ 2015 (38) STR 16 (Bom)]. In these terms, I do not find any infirmity in the impugned order, same is upheld. Appeal filed by the appellant is dismissed.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

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