2008 (8) TMI 253 - AT - Central Excise

President overturns dismissal of appeal, citing non-deliberate delay. Commissioner to review without pre-deposit.

The appeal was dismissed as time-barred due to a delay of three days in filing within the stipulated 60-day period. The President of the Tribunal set ... Commissioner rejected the condonation application and dismissed the appeal as time-barred - It is true that the preamble of the order-in-original mentioned that the appeal could be filed within sixty days as provided in the Act but the moot question was whether the resultant delay of three days should be condoned. The intervening two days being Saturday and Sunday, the Commissioner should have shown better discretion and condoned the delay, and decided the appeal on merits Issues: Appeal dismissed as time-barred due to delay in filing within 60 days.Analysis:The appeal before the Appellate Tribunal CESTAT New Delhi was directed against the order of the Commissioner (Appeals) which dismissed the appellant's appeal as time-barred. The appellant received the copy of the order-in-original on 22-1-2007 and was required to file the appeal within sixty days from the date of communication of the order, i.e., by 23-3-2007. The appellant claimed that they dispatched the appeal papers on 23-3-2007, 24-3-2007, and 25-3-2007, but due to Saturday and Sunday, the papers reached the Commissioner's office on 26-3-2007, resulting in a delay of three days. The Commissioner rejected the condonation application, emphasizing that the appeal should have been filed within sixty days and not two months as claimed by the appellant.After hearing both parties, the President of the Tribunal observed that the Commissioner failed to consider the matter correctly. While it was acknowledged that the appeal should have been filed within sixty days as per the Act, the crucial issue was whether the delay of three days should be condoned. Given that two of the days were Saturday and Sunday, the President opined that the Commissioner should have exercised better discretion and condoned the delay, deciding the appeal on its merits. It was emphasized that courts generally avoid ex-parte decisions, whether in favor of the assessee or the Revenue. Satisfied that the delay was not deliberate, the President set aside the impugned order and remanded the matter to the Commissioner for a decision on merits in accordance with the law, after waiving the requirement of pre-deposit.In conclusion, the Tribunal found that the delay in filing the appeal was not intentional and, considering the circumstances, directed the Commissioner to review the appeal on its merits rather than dismissing it solely on the grounds of being time-barred.