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2013 (12) TMI 78 - HC - Central ExciseTime-barred appeal pending or not - Non-maintenance of separate account under Rule 57CC of the Central Excise Rules, 1944 - Modvat Credit took on various inputs - Final products Dutiable as well as exempted products - Whether a time barred appeal can be said to be pending and pendency can be negated on the ground that it was filed beyond time – Held that:- The findings have been recorded by the Tribunal that the date of receipt of the order i.e. 13th August, 2003 has to be accepted - The appeal was filed by same person - The findings recorded by the Commissioner as well as the Tribunal that the appeals were barred by time are based on consideration of all relevant materials - Relying upon Commissioner of Income Tax, Rajkot vs. Shatrusailya Digvijaysingh Jadeja [2005 (9) TMI 362 - SUPREME COURT OF INDIA] - The proposition is undisputed that even if appeal is filed beyond time, the appeal is to be treated as an appeal pending and merely because the appeal is beyond time, it cannot be treated as no appeal - there is no power with the Commissioner to condone the delay beyond one month after expiry of two months - when appeal is filed before the Appellate Tribunal it had jurisdictional power to set aside an order of Commissioner Central Excise Appeals including an order rejecting the appeal as barred by time. Rule 57CCC does not refer to pendency of appeal or revision rather it uses a word of wider connotation i.e. "a dispute" - The word "dispute" clearly encompass within it a pendency of any litigation or claim of one party against the department - the adjudication order passed by adjudicating authority directing for payment of duty was disputed by filing an appeal - When an order passed by the adjudicating authority is challenged by an aggrieved party he is obviously disputing the order and his action of filing a time barred appeal either before Commissioner Central Excise (Appeals) or before the Tribunal has to be treated as raising a dispute and appeal before the CESTAT pending on the relevant date, it has to be accepted that the dispute was pending on the relevant date. The very basis of contention to knock out the application submitted by the petitioner under Rule 57CCC is unfounded - the application dated 2.7.2010 filed by the petitioner to take benefit under section 69(2) of the Finance Act, 2010 read with Rule 57CCC cannot be said to be non entertainable on the ground that no dispute was pending on the relevant date i.e. on 8.5.2010 - the writ petition is disposed of with a direction to the respondent no. 2 to consider the application dated 2.7.2010 submitted on 5.7.2010 by the petitioner under section 69(2) of the Finance Act 2010 read with Rule 57CCC of the Rules – Decided in favour of Petitioner.
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