TaxTMI 
TaxTMI 
2026 (6) TMI 7
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.... claim on the ground that the refund claim was filed only on 31.03.2017 for the services expired during the quarter of October, 2015 to December, 2015 and it is barred by limitation. Aggrieved by said order, an appeal was filed before the Commissioner (Appeals). The Commissioner (Appeals) dismissed the appeal with an observation that the appeal is filed after delay of 77 days from the due date for filing the appeal. Aggrieved by the said order, present appeal is filed. 3. When the appeal came up for hearing, the Learned Chartered Accountant for the Appellant draw our attention to Section 37C of Central Excise Act which is reproduced below:- "a) Any decision or order passed, or any summons or notices issued under this Act or the rules made thereunder, shall be served. (i) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) to the person for whom it is intended or his authorized agent, if any; (ii) if the decision, order, ....
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....ay in filing the appeal, contended that the delay was due to the fact that the department did not serve the O1O in time and the appellant was only given a copy of the OIO based on which he could not file the appeal. This is a specious argument. Nowhere does the statute preclude the appellant from filing the appeal on the basis of a photocopy of the OIO It is another matter that even the refund claim itself is hit by limitation of time". 7. Further as per the evidence produced by the Learned AR, there is an endorsement by Shri. K Shivaprasad who is authorised by the Appellant to appear on behalf of the Appellant in personal hearing along with Chartered Accountant Shri. Abhi Parakh before the Adjudication authority that the order is received on 02.01.2018. Though the Commissioner (Appeals) stated that the appeal is filed beyond the period of 77 days, considering the facts and circumstances of the case, it is evident that employee of the Appellant who is authorised by the Appellant to appear before Adjudication authority along with Chartered Accountant Shri. Abhi Parakh has received copy of the order on 02.01.2018. However when the Appellant took said contention before the first Ap....
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....wedly not authorise to deal with communications to and from the appellant". Further, I find that no harm will cause to Revenue even if the delay in condoned and in the interest of justice, the appeal can be disposed on merit. Considering the same, the appeal rejected on the ground of delay in filing appeal before the Commissioner (Appeals) is unsustainable. Accordingly, the impugned order is set aside and the matter is remanded to Commissioner (Appeals) to consider the appeal on merit. (Order pronounced in Open Court on ................................) (P.A. AUGUSTIAN) MEMBER (JUDICIAL) -separate order- (R. BHAGYA DEVI) MEMBER (TECHNICAL) PER: R. BHAGYA DEVI : 8. Heard both sides. In the impugned order the Commissioner (Appeals) observed that the appeal has been filed after delay of 77 days from the due date for filing the appeal. "3. The personal hearing was held on 28-06-2018 wherein the authorized representative of the appellant appeared for the hearing. He was informed that the hearing was being conducted for the limited purpose to decide on the admittance of the appeal or otherwise and also to ascertain the reason....
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.... of delay of further 30 days it should have been filed on 02.04.2018. However, we find that the appeal was filed on 09.05.2018, thus with the delay of 67 days beyond the appealable period of 60 days. Section 85 (3A) of the Finance Act, 1994 reproduced below allows the Commissioner (Appeals) to entertain the appeal within 60 days from the date of the receipt of the order and further 30 days with condonation of delay. Since, the appeal filed by the appellant is beyond the condonable period, the Commissioner (Appeals) was justified in rejecting the appeal filed by the appellant. I also note that the Hon'ble Supreme Court in the case of Singh Enterprises Versus Commissioner of C. Ex., Jamshedpur: 2008 (221) E.L.T. 163 (S.C.) observed as follows. "6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows: "35. Appeals to Commissioner (Appeals). - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within....
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....for the appellant has emphasized on certain decisions, more particularly, I.T.C.'s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown. 10. Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taking steps. In the instant case, the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C.'s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of l....
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.... Commissioner (Appeals) was right in rejecting the appeal as the appeal was filed beyond the condonable limits provided by the statute, which was upheld by the Hon'ble Member (Technical). 13. Even though the facts are narrated in the order passed by the learned Members, to appreciate the Points of Difference, it is relevant to restate the facts, in brief. 14. Briefly stated the facts of the case are that the appellant, a private limited company, has filed a refund claim under Rule 5 of the Cenvat Credit Rules, 2004 which was rejected by the adjudicating authority by Order-in-Original No.97/2017-R dated 27.12.2017. 15. The crux of the issue is the date of communication/delivery of the said Order-in-Original dated 27.12.2017. 16. Before the adjudicating authority as mentioned at para 8 of the Order-in-Original, on 26.12.2017, personal hearing was attended by Shri Abhi Parakh, Ms. Muthyala Sreeja & Shri K. Siva Prasad, the authorised representative of the company. The order was passed on the very next day i.e. 27.12.2017 rejecting the refund claim. It is the claim of the appellant before the learned Commissioner(Appeals) that since certified copy of the Order-in-Original w....
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....erson referred to in sub-section (1) to appear on his behalf, being - (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practise in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose. Therefore, it is incorrect to say that a person who can appear for and on behalf of the appellant which includes his relative or regular employee and authorised to argue the matter on behalf of the appellant accepting or modifying any of the relief proposed to be allowed by the authority before whom they appear, cannot be construed that he is not authorised to receive the order after the adjudication proceedings are over; a separate authorization is required to receive the Order in compliance with the provisions of Section 37C of CEA, 1944. Such an interpretation of the Section 37C will result in absurdity. Needless to emphasize in many cases, after the proceedings are over, the orders are pronounced and delivered on the same day to the persons who appeared for the party concerned. In the present case, nowhere the appellant has disputed that Shri K. ....
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....====== Document 1 25/02/25 केंदà¥à¤°à¥€à¤¯ कर सहायक आयà¥à¤•à¥à¤¤ कर कारà¥à¤¯à¤¾à¤²à¤¯ , à¤à¤®. डी. 5. मंडल हरà¥à¤µà¥‰ तल, केंदà¥à¤°à¥€à¤¯ सदन, कोरमंगला, बेंगलूर- 560034 OFFICE OF THE ASSISTANT COMMISSIONER OF CENTRAL TAX: SOUTH DIVISION- 5: 6TH FLOOR: 'A' WING: KENDRIYA SADAN: KORAMANGALA: BANGALORE-550034 C. No. V/10/225/2017 ST (R) Div C, ST II Rvr/w/Date: 26.12.2017 M/s Simplilearn Solutions Pvt Ltd REPRESENTED BY: Shri. Abhi Parakh, Ms. Muthyala Breeja & Shri K. Siva Prasad SCN/OIO Details. C. No. V/10/225/2017 ST (R) Div C, ST II dated 21.06.2017 SUMMARY: The Personal Hearing in respect of the SCN C. No. V/10/225/2017 ST (R) Div C, ST II dated 21.06.2017 was already conducted on 05.09.2017. However, as the issue of Time Limit was not discussed in the SCN dated 21.06.2017, the assessce reques....