Custom, Excise & Service Tax Tribunal
M/S Emcure Pharmaceuticals Ltd vs Cce, Jammu on 14 September, 2012
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Block No.2, R.K.Puram, New Delhi
COURT-I
Date of hearing/decision 14.09.2012
Honble Sh. Justice Ajit Bharihoke, President
Honble Sh. Rakesh Kumar, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982.
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
Excise Appeal No. 620 of 2012
(Arising out of order-in-Appeal No. 231/CE/Appl/Chd.II(JK)2011/2011 dated 29.09.2011 passed by the Commissioner of Central Excise (Appeals), Chandigarh).
M/s Emcure Pharmaceuticals Ltd. Appellants
Vs.
CCE, Jammu Respondent
Present Sh. Gautam Chugh, Advocate for the appellant.
Present Shri M. S. Negi, AR for the respondent.
CORAM : Honble Shri Justice Ajit Bharihoke, President
Honble Shri Rakesh Kumar, Member (Technical)
Order No. ________________
Per. Rakesh Kumar:
The appellant are a unit in the State of Jammu & Kashmir availing of duty exemption under Notification No. 56/2002-CE dated 14.11.2002. The jurisdictional Assistant Commissioner vide order-in-original dated 30.03.2011 rejected the appellants claim for refund in terms of Notification No. 56/2002-CE of the education cess and secondary & higher education cess paid through PLA, holding that the education cess and S&H Education cess are not exempt under Notification No. 56/2002-CE. The appellant filed appeal before the Commissioner (Appeals) against this order of the Assistant Commissioner. Since there was 20 days delay in filing of appeal before the Commissioner (Appeals), the appellant alongwith appeal, also filed an application for condonation of delay on the ground that their excise Manager, who was looking after all the central excise litigation, had met with an accident on 12.04.2011 and did not come to the factory for two months and because of this the filing of appeal was delayed. The Commissioner (Appeals) however did not accept this plea of the appellant and refused to condone the delay, though, in terms of provision to Section 35(1) of the Central Excise Act the Commissioner could condone the delay upto 30 days in filing of appeal where the appellant have been prevented due to sufficient cause from presenting the appeal within limitation period of 60 days. Since the delay in filing of appeal was not condoned, the appeal was dismissed without going into the merits of the case. Against this order of the Commissioner (Appeals) this appeal alongwith stay application has been filed.
2. Though, this matter was listed for hearing of the condonation of delay application only, after hearing both the sides we are of the view that the matter can be taken up for final disposal. Accordingly the requirement of pre-deposit is waived and with the consent of both the sides, the matter is heard for final disposal.
3. Shri Gautam Chugh, Advocate, the ld. Counsel for the appellant pleaded that as mentioned in the impugned order-in-appeal itself 20 days delay in filing of appeal was for the reason that the appellants Excise Manager, who was looking after all the central excise litigation work had met with an accident on 12.04.2011 and did not come to the factory for two months, as a result of which the filing of appeal against the Assistant Commissioners order has got delayed; that the reason for delay in filing of appeal before the Commissioner (Appeals) was genuine; that the Commissioner (Appeals)s order refusing to condone the delay, which was due to genuine reasons, is incorrect and that in view of this the matter may be remanded to the Commissioner (Appeals) for decision on merit.
4. Shri M.S. Negi, ld. AR defended the impugned order and reiterating the finding of the Commissioner (Appeals).
5. We have considered the submissions from both sides and perused the record. In terms of proviso to Section 35(1) if the Commissioner (Appeals) is satisfied that if the appellant was prevented due to sufficient cause from filing of appeal within the stipulated period of 60 days from the date of communication of the order, he may allow to be presented within further period of 30 days. Thus, the Commissioner (Appeals) has power to condone the delay in filing of appeal upto 30 days, if the reasons are genuine. We are of the view that in this case the reason for 20 days delay in filing of the appeal was genuine and as such Commissioner (Appeals) order refusing to condone the delay and dismissing the appeal without going into merits of the case is not correct. The impugned order is, therefore, set-aside and the matter is remanded to the Commissioner (Appeals) for decision on merits.
(Justice Ajit Bharihoke) President (Rakesh Kumar) Member (Technical) Pant 3