Custom, Excise & Service Tax Tribunal
Hanil Era Textiles Ltd vs Commissioner Of Central Excise, Raigad on 17 January, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/S/851/2011-Mum. in E/772/2011-Mum. (Arising out of Order-in-Appeal No. YDB/226/RGD/2011 dt.11.3.2011 passed by the Commissioner (Appeals) Central Excise, Mumbai-II For approval and signature: Honble Mr. S.S.Kang , Vice President Honble Mr. Sahab Singh, 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?
============================================================= Hanil Era Textiles Ltd. :
Appellant VS Commissioner of Central Excise, Raigad. :
Respondent Appearance Shri Sachin Chitnis, Advocate for Appellant Shri H.B. Negi, Additional Commissioner (A.R) for respondent.
CORAM:
Mr. S.S. Kang, Vice President
Mr. Sahab Singh, Member (Technical)
Date of hearing : 17/01/2012
Date of decision : 17/01/2012
ORDER NO.
Per : S.S.Kang
Heard both sides.
2. The applicant filed that application for waiver of pre-deposit of duty, interest and penalty. The appeal filed by the appellant was dismissed by the Commissioner (Appeals) as time barred.
3. The contention of applicant is that the Commissioner (Appeals) is dismissed the appeal as time barred on the ground that the adjudication order was received by the applicant on 20.8.2010 and appeal was filed on 20.10.2010, which is beyond the period of 60 days as provided under Section 35 of Central Excise Act. The applicant relied upon the provisions of Section 9 of the General Clauses Act, 1897, to submit that as per the provisions of Section 35 of the Central Excise Act, the Appeal is to be filed within 60 days from the date of communication of the adjudication order, therefore, the limitation starts from 21.8.2010 hence the appeal is within the time prescribed under Section 35 of the Central Excise Act. It is also submitted that the Commissioner (Appeals) is also empowered to condone further delay of 30 days in filing the appeal on showing the sufficient cause. The applicant argued the stay application before the Commissioner (Appeals) and Commissioner (Appeals) has not pointed out, during the arguments, regarding the aspect of time bar. Hence, the impugned order is not sustainable.
4. The contention of Revenue is that as the appeal is dismissed as time barred therefore, the applicant is required to deposit the amount in dispute.
5. We find that the Commissioner (Appeals) in the impugned order held that the adjudication order dt. 9.8.2010 is received by the appellant on 20.8.2010 and appeal has been filed on 20.10.2010. We find that Section 9 of the General Clauses Act, provides that for commencement and limitation of time, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word from and for the purpose of including the last in the series and days to use the to. The provisions of Section 35 of the Central Excise Act provides that appeal is to be filed within 60 days form the date of communication of the adjudication order. In view of the above provisions, we find that the limitation starts from 21.8.2010. Hence, the impugned order passed by the Commissioner (Appeals) dismissing the appeal as time barred is not sustainable. Hence, set aside the impugned order and the matter is remanded to the Commissioner (Appeals) after waiving the pre-deposit of dues. The application for waiver of pre-deposit of dues is allowed after affording an opportunity of hearing to the appellant. The appeal is disposed of by way of remand.
(Dictated in court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President Sm ??
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