Time-barred appeal can still be a pending dispute where the challenge remains alive before the Tribunal.

An appeal filed beyond limitation remains an appeal in law, even if it is liable to dismissal as time-barred, because limitation bars the remedy and does not extinguish the appeal itself. On that basis, a time-barred appeal pending before the Tribunal on the relevant date was treated as pending, and the broader expression "pending dispute" under Rule 57CCC was held to include such a challenge where the assessee had contested the demand. The authority was therefore required to consider the assessee's application under Section 69(2) of the Finance Act, 2010 read with Rule 57CCC on its merits.

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Issues: (i) Whether an appeal filed beyond the period of limitation and beyond the further condonable period can be treated as a non est appeal; (ii) Whether the time-barred appeal pending before the Tribunal on the date of assent to the Finance Act, 2010 could be treated as pending; (iii) Whether such pendency amounted to a pending dispute within Rule 57CCC of the Central Excise Rules, 1944.

Issue (i): Whether an appeal filed beyond the period of limitation and beyond the further condonable period can be treated as a non est appeal?

Analysis: The right of appeal is substantive, while limitation is procedural and only bars the remedy. An appeal presented out of time remains an appeal in law, even if it is liable to dismissal as time-barred. The absence of jurisdiction in the Commissioner (Appeals) to condone delay beyond the statutory limit does not make the appeal non-existent for all purposes.

Conclusion: The time-barred appeal could not be treated as a non est appeal.

Issue (ii): Whether the time-barred appeal pending before the Tribunal on the date of assent to the Finance Act, 2010 could be treated as pending?

Analysis: On the relevant date, the appeal before the Tribunal was pending. The fact that it had been filed beyond time did not destroy its pending character. A pending appeal remains pending until disposed of, and the Tribunal had jurisdiction to examine the appeal against the order dismissing the first appeal as time-barred.

Conclusion: The appeal pending before the Tribunal on the relevant date was treated as pending.

Issue (iii): Whether such pendency amounted to a pending dispute within Rule 57CCC of the Central Excise Rules, 1944?

Analysis: The expression used in Rule 57CCC is broader than a pending appeal and covers a pending dispute. A dispute exists where one side asserts a claim and the other side contests it. Since the assessee had challenged the demand order and the matter was pending before the Tribunal on the relevant date, the dispute remained pending for the purpose of Rule 57CCC.

Conclusion: The pending appeal constituted a pending dispute within Rule 57CCC.

Final Conclusion: The writ petition succeeded to the extent of a direction requiring the authority to consider the assessee's application under Section 69(2) of the Finance Act, 2010 read with Rule 57CCC on its merits.

Ratio Decidendi: An appeal filed beyond limitation is still an appeal in law, and where the statute refers to a pending dispute, a time-barred but pending challenge to an adjudication order satisfies that requirement.

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