2017 (2) TMI 201 - HC - Central Excise

Appeals dismissed by Tribunal due to limitation; one case argued on start date, another granted condonation.

The appeals were dismissed by the Tribunal on the ground of limitation. In one case, the appellant successfully argued that the limitation period should ... Whether the Tribunal rightly dismissed the appeals on the ground of limitation? - Held that: - The appellant’s case however is that there was in fact no delay for the period of limitation commences not from the date of order but from the date of the receipt of the decision or order. The petitioner contends that the order was received only on 07.01.2013. If that is so, the appeal will be within time. The order was admittedly sent by RPAD. It is reasonable to presume that the same would not have been received by the assessee on the same date - It is reasonable to presume that in the ordinary course of post, a letter sent RPAD would have been delivered three days later. The next issue which arises only in CEA No.41 of 2016 is whether the appeal ought to have been filed under the Finance Act or under the Central Excise Act? The appellant is at liberty to agitate that issue also afresh before the Commissioner (Appeals) who is the appellate authority under both the Acts - Appeal dosposed of. Issues:1. Dismissal of appeals on the ground of limitation.2. Whether the appeal should have been filed under the Finance Act or Central Excise Act.Analysis:Issue 1: Dismissal of appeals on the ground of limitationThe Tribunal dismissed the appeals due to being filed beyond the prescribed period of limitation. In CEA No.40 of 2016, the appellant argued that the limitation period should commence from the date of receipt of the decision or order, not from the date of the order itself. The appellant claimed the order was received on 07.01.2013, not on 04.01.2013. The Tribunal was criticized for not considering the RPAD receipt to verify the date of receipt. Referring to Section 27 of the General Clauses Act, a statutory presumption was mentioned that a letter sent RPAD would be delivered three days later. The court held in favor of the appellant, stating that the appeal should be considered within time, and directed the Commissioner (Appeals) to hear the appeal on merits.In CEA No.41 of 2016, the appeal was also dismissed due to a delay of two days in filing. The appellant failed to explain the delay or seek condonation. The appellant mentioned a fire incident at their premises, causing a change in address, which could be a reasonable ground for condonation. The court acknowledged the minimal delay and granted the appellant an opportunity to file an application for condonation of delay within four weeks from the judgment date, emphasizing the importance of seeking condonation.Issue 2: Whether the appeal should have been filed under the Finance Act or Central Excise ActRegarding CEA No.41 of 2016, the question arose whether the appeal should have been filed under the Finance Act or the Central Excise Act. The appellant was given the liberty to raise this issue before the Commissioner (Appeals), who is the appellate authority under both Acts. The Tribunal did not address this issue as the appeal was dismissed on the grounds of limitation only. The appellant was advised to raise this issue afresh before the Commissioner (Appeals) for consideration.In conclusion, the appeals were disposed of with directions for further proceedings as per the court's rulings.