Allahabad High Court
M/S Rotomac Global Pvt. Ltd. vs Commissioner, Central Excise ... on 8 July, 2015
Bench: Tarun Agarwala, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 37
Case :- CENTRAL EXCISE APPEAL No. - 125 of 2015
Appellant :- M/S Rotomac Global Pvt. Ltd.
Respondent :- Commissioner, Central Excise Kanpur
Counsel for Appellant :- Ashok Bhatnagar
Counsel for Respondent :- Vinod Kant
With
Case :- CENTRAL EXCISE APPEAL No. - 126 of 2015
Appellant :- M/S Rotomac Global Pvt. Ltd.
Respondent :- Commissioner, Central Excise Kanpur
Counsel for Appellant :- Ashok Bhatnagar
Counsel for Respondent :- Vinod Kant
Hon'ble Tarun Agarwala,J.
Hon'ble Surya Prakash Kesarwani,J.
We have heard Sri Ashok Bhatnagar, the learned counsel for the appellant and Sri Prateek Chandra, the learned Counsel holding brief of Sri Vinod Kant, the learned counsel for the respondent.
It transpires that the appellant's application for refund was rejected by the authority, who passed the order in original dated 5th June, 2013. This order was served upon an employee of the appellant in the respondent's office on 26th June, 2013 and was placed before the appellant on 28th June, 2013. The appellant preferred an appeal on 26th August, 2013 under Section 85 of the Finance Act (2), 1994.
According to the appellant, the appeal was filed within the stipulated period of two months. This appeal was however, rejected by the Commissioner (Appeals) by its order dated 25th September, 2013
on the ground of limitation. The Commissioner (Appeals) held that there was delay of two days and that the appellant had misrepresented the fact that the order in original was served on 28th June, 2013, whereas it was actually served upon his employee on 26th June, 2013 and on this misrepresentation, the appeal was dismissed as being barred by limitation. The appellant, being aggrieved, filed an appeal before the Customs Excise and Service Tax Appellate Tribunal, which was also rejected on the same ground by an order dated 6th January, 2015. The appellant, being aggrieved, has filed the present appeal under Section 35G of the Central Excise Act, 1944.
Having heard the learned counsel for the appellant, we are of the opinion that the appeal was presented within the stipulated period of 60 days as provided under Section 85 of the Finance Act (2), 1994 and that there was no misrepresentation. Section 85 of the Finance Act provides as under:
"Section 85. Appeals to the [Commissioner] of Central Excise (Appeals).-
(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).
(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.
(3) ...........
(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is
satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month."
A perusal of Section 85(3A) of the Finance Act (2) of 1994 indicates that the appeal has to be presented within two months from the date of receipt of the decision or order.
Admittedly, the order in original was served upon an employee of the appellant on 26th June, 2013 under Section 35-O of the Central Excise Act provides the proceeding for computing the period of limitation prescribed for an appeal and stipulates that the day on which the order was served has to be excluded. Therefore, while counting 60 days, 26th June, 2013 has to be excluded while counting the period of limitation.
We also find from a perusal of page 63 of the paper book that the appeal was served in the office on 26th August, 2013. The finding of the Tribunal that the appeal was presented on 27th August, 2013 is against the material on record. We are therefore, of the opinion that the appeal was filed within 60 days.
Further, we also find that the first appellate authority as well as the Tribunal committed a manifest error of law in holding that the appellant had misrepresented the fact that the order was served upon them on 28th June, 2013.
The appellant in paragraph 1 to 1.8 of the grounds of appeal before the Tribunal has clearly explained as to how he had treated the original order to have
been served upon them on 28th June, 2013. Such explanation given only explains as to how the appellant had treated the order to have been served upon them on 28th June, 2013. Such explanation given clearly indicates that there was no misrepresentation to the effect that the order was not served on 26th June, 2013 but on 28th June, 2013.
Even otherwise, we are of the opinion that a liberal approach should have been adopted by the Tribunal as well as by the appellate authority. The delay of two days was not fatal and a liberal approach should have been adopted in handling the matter.
Consequently, for the reasons stated aforesaid, the order of the first appellate authority as well as the order of the Tribunal cannot be sustained and are quashed. The appeal is allowed at the admission stage itself. The matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after hearing all the parties concerned.
Order Date :- 8.7.2015
Bhaskar
(Surya Prakash Kesarwani, J.) (Tarun Agarwala, J.)
