Senior Divisional Commercial Manager, ... vs Commissioner Ofcentral Excise, ...

Arising out of O/ONo.ACCE/SBP-II/S.Tax/No.11/2012 dated 30.11.2012 passed by Commissioner (Appeal) of Central Excise, Customs &S.Tax, BBSR.

For approval and signature:

DR. D. M. MISRA, HONBLE JUDICIAL MEMBER

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 His Lordship wishes to see the fair copy of the Order? :

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

Senior Divisional Commercial Manager, East Coast Railways APPELLANT(S) VERSUS

Commissioner ofCentral Excise, Customs &S.Tax, BBSR RESPONDENT (S)

APPEARANCE

Shri Bidyut, Chakraborty, Advocate for the Appellant (s) Shri S. N. Mitra, Asstt. Commr.for the Department

CORAM:

DR. D. M. MISRA, HONBLE JUDICIAL MEMBER

DATE OF HEARING &PRONOUNCEMENT : 19. 02. 2015

ORDER NO.FO/A/75098/2015

Per Dr. D. M. Misra :

Heard both sides.

2. This miscellaneous application is filedseeking condonation of delay of 22 days in filing the Appeal before this Tribunal. In view of the reason explained in the application and the submission advanced by the ld.Advocate for the Applicant, the delay in filing the Appeal, is condoned.

3. At the outset, The ld. A.R. for the Revenue, has brought to my notice that the ld. Commissioner (Appeals) has not decided the issue on merit but dismissed their Appeal on the ground of delay. He submits that the Order-in-Original was communicated to the Appellant on 22nd May, 2013 and the Appeal was filed on 07.10.2013. It is his submission that after allowing the statutory limit of 60 days and the condonable limit of 30 days, there was a further delay of 47 days. He submits that the ld.Commissioner (Appeals) is not vested with the power to condone delay beyond condonable limit of 30 days in addition to the statutory limit of 60 days prescribed under Sec.85 of the Finance Act,1994. In support, he has referred to the decision of the Honble Supreme Court in the case of Singh Enterprises Vs. CCEx., Jamshedpur reported in 2008 (221) ELT 163 (SC).

4. The ld. Advocate for the Applicant, on the other hand submits that since filing Appeal, is a policy decision, therefore, there was a delay in filing the Appeal before the ld.Commissioner (Appeals). He submits that it was a bonafide delay, therefore, keeping in view that the Appellant is a Government Department and that they have a strong case on merit, therefore, the delay in filing the Appeal before the ld.Commissioner (Appeals) be condoned and their case be remanded to the ld.Commissioner (Appeals) for deciding the issue afresh on merit.

5. On going through the record, I find that the Ld. Commissioner(Appeals) has not decided the issue on merit. There is no dispute about the date of communication of the order-in-original and also date of filing of the Appeal before the ld.Commissioner (Appeals). On the contrary, the ld. Advocate for the Appellant has submitted and it is stated in their grounds of appeal that the delay in filing the Appeal before the ld.Commissioner (Appeals), was due to late decision by the Management. I find force in the submission of the Ld. A.R. for the Revenue that in view of the principle of law settled by the Honble Supreme Court in the case of SinghEnterprises (cited supra), the ld.Commissioner (Appeals) is not empowered to condone the delay beyond the condonable limit of 30 days in addition to the statutory limit of 60 days in filing the appeal before him under Section 85 of the Finance Act, 1994. In the result, the Appeal is devoid of merit, accordingly, the same is liable for dismissal. Appeal dismissed.The Miscellaneous Application and Stay Petition are also disposed off.

(Dictated and pronounced in the open Court) Sd/ (DR. D.M.MISRA) MEMBER (JUDICIAL) mm

3 S.T. Appeal No.75331/14