Custom, Excise & Service Tax Tribunal
M/S Orient Craft Limited vs Cce, Delhi on 15 October, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing/decision: 15.10.2015 For Approval and Signature: Honble Mr. Justice G. Raghuram, President Honble Mr. B. Ravichandran, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of 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? Service Tax Appeal No. 885 of 2009 (Arising out of order No. 223/MA/GGN/2009 dated 27.08.2009 passed by the Commissioner of Central Excise (Appeals) Delhi-III, Gurgaon) M/s Orient Craft Limited Appellant Vs. CCE, Delhi Respondent
Appearance:
None for the appellant Shri Amresh Jain, DR for the Respondent Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. B.Ravichandran, Member (Technical) Final Order No. 53235 / 2015 Per: B. Ravichandran:
Appellant preferred this appeal against order dated 27.08.2009 by the Commissioner (Appeals), Gurgaon. The ld. Commissioner rejected the appeal as not maintainable on the ground that the same was filed beyond the time period prescribed under Section 85(3) of the Finance Act, 1994. The admitted facts of the case are that the order of the original authority dated 15.01.2009 was received by the appellant on 19.01.2009. The appeal before the Commissioner (Appeals) was filed on 14.07.2009. The appellant did not dispute the date of receipt of original order or delay in filing the appeal. Some reason to the effect that concerned employee was on leave was given for delay in filing the appeal.
2. We find that the appellant filed this appeal pleading on merit and on bonafide delay in filing first appeal before Commissioner (Appeals).
3. When the case came up for hearing today, inspite of due intimation to the Consultant on 06.08.2015 when the case was adjourned to today on appellants request, no one appeared on behalf of the appellant.
4. The Ld. AR pleads that there is no legal basis to interfere with impugned order of Commissioner (Appeals). As per the provisions of Section 85, Commissioner (Appeals) powers are clearly defined. In exercise of such powers the ld. Commissioner examined the reasons for delay in filing the appeal. The reason that the appellants accountant was on leave during the relevant period was found factually incorrect by the ld. Commissioner. In the absence of any other reason to substantiate the justifiable delay in filing appeal the same was dismissed as not maintainable by Commissioner (Appeals).
5. We find that appellants relied on certain case laws. The cases cited by the appellant in their appeal will not support the cause of the appellant. We have considered these decisions. The Tribunal in Fairlon Engg. (P) Ltd. vs. CC, Mumbai 2003 (157) ELT 429 (Tri. Del.) held that the Commissioner (Appeals) should have decided the prayer of the appellant for condonation of delay taking into account the totality of the facts and circumstances. In Healthline (P) Ltd. vs. CCE, Bangalore 2003 (232) ELT 452 (Tri. Bang.) the Tribunal was dealing with the condonation of marginal delays with a due justification. In Indian Lead Limited 2004 (169) ELT 366 (Tri. Mumbai) the Tribunal remanded the matter to the Commissioner (Appeals) as the appellant pleaded the delay is due to the reason that their Counsel met with an accident. In Ram Kumar Agarwal vs. CC, Indore 2003 (157) ELT 280 (Tri. Del.) the Tribunal was examining the delay in pre-deposit as ordered by the Tribunal.
6. We find all the above cases deals with particular situations. In the present case in hand, the Commissioner (Appeals) did examine the submissions made by the appellant praying for condonation of delay in filing the appeal. The delay was almost three months beyond the statutory time of three months. The learned Commissioner (Appeals) specifically examined the request for condonation of delay, to exercise powers under proviso to sub-section (3) of Section 85 of the Finance Act, 1994 and discussed the same in para 11 of her order. The material submitted by the appellants were examined and same are found to be factually incorrect and not in consonance with the pleadings made by the appellant. Accordingly, the ld. Commissioner (Appeals) came to the conclusion that there is no justifiable ground for condonation of delay as she was not satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of three months as stipulated under Section 85. We find no reason to interfere with the above findings of the ld. Commissioner (Appeals) and accordingly dismiss the appeal.
(Justice G. Raghuram) President (B. Ravichandran) Member (Technical) Pant