2022 (2) TMI 150 - AT - Customs

Tribunal allows appeal, emphasizes liberal application of limitation laws

The Tribunal remanded the case, allowing the appeal by condoning the minimal delay in filing the appeal challenging the rejection of a refund claim under ... Condonation of delay - discretion under proviso to Section 35 of the Central Excise Act - decide appeal on merits - liberal approach to limitationCondonation of delay - discretion under proviso to Section 35 of the Central Excise Act - decide appeal on merits - liberal approach to limitation - Whether the Commissioner (Appeals) was justified in rejecting the appeal as time-barred without exercising the discretion conferred by the proviso to Section 35 and whether the matter should be remanded for exercise of that discretion and adjudication on merits. - HELD THAT: - The Tribunal found that the Order in Original was received by the appellant on 10th May 2018 and that the appeal was filed on 11th July 2018, resulting in a two day delay beyond the 60 day period. Although no formal application for condonation of delay was filed, the Commissioner (Appeals) had not pointed out the defect and had proceeded to query the merits of the appeal. The proviso to Section 35 confers a discretion on the Commissioner (Appeals) to condone delay for a further period, and that discretion ought to have been exercised rather than resulting in summary dismissal. Given the minuscule delay, absence of malafide and settled jurisprudence preferring adjudication on merits with a liberal approach to limitation, the Tribunal concluded that the appeal should be decided on merits after the Commissioner (Appeals) considers and, if justified, condones the delay. Accordingly the Tribunal remanded the matter for fresh consideration on these lines. [Paras 6, 7, 8]The matter is remanded to the Commissioner (Appeals) to consider condoning the delay under the proviso to Section 35 and to decide the appeal on merits; appeal allowed by way of remand.Final Conclusion: The Tribunal allowed the appeal by way of remand, directing the Commissioner (Appeals) to exercise the discretion under the proviso to Section 35 to consider condonation of the short delay and thereafter to decide the appeal on merits. Issues:1. Timeliness of filing the appeal under Section 35 of Central Excise Act, 1994.2. Consideration of delay in filing the appeal.3. Discretion of Commissioner (Appeals) to condone the delay.Analysis:1. The appeal was filed challenging the rejection of a refund claim under a special refund mechanism. The Order-in-Appeal was rejected for not being filed within the statutory period as per Section 35 of the Central Excise Act, 1994.2. The appellant received the Order in Original on 10th May, 2018, and filed the appeal on 11th July, 2018, a delay of two days beyond the 60-day limit. The appellant argued that the delay was due to personal exigency beyond the control of the counsel. The Commissioner (Appeals) acknowledged the delay but did not point out the defect or allow for condonation of the delay.3. The Tribunal observed that the delay was minimal and the malafide intent could not be attributed to the appellant. Referring to legal principles, the Tribunal emphasized on deciding matters on merits and exercising the law of limitation liberally. Citing a Supreme Court decision, the Tribunal highlighted the importance of not throwing out meritorious matters due to delay. The Tribunal concluded that the Commissioner (Appeals) should have exercised discretion to condone the delay and decide the appeal on merits. Consequently, the matter was remanded, and the appeal was allowed by way of remand.