TMI Blog2013 (12) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Credit utilized on the total inputs on a prorata basis depending the weight of duitable and exempted final products. The petitioner had therefore, reversed a total amount of Rs.5,473/- of Modvat Credit out of total Rs.40,045/- credit availed, being the Modvat Credit arising out of the use of inputs in exempted final products. However, separate accounts as envisaged under Rule 57CC of the Central Excise Rules, 1944 were not maintained. Due to non-maintenance of segregating accounts a show cause notice was issued to the petitioner on 23/9/1998. According to the show cause notice, the petitioner was liable to reverse Rs.9,28,815/- as the duty payable. The above demand was confirmed by order dated 24/2/2000, passed by the Deputy Commissioner, Central Excise, Agra and a penalty of Rs. 1 lac was also imposed. The petitioner filed a time barred appeal before the Commissioner of Central Excise (Appeals) Kanpur which was rejected on 19/1/2006. Against the aforesaid order, the petitioner preferred a second appeal before the CESTAT, New Delhi which was registered as Appeal No.2828/2009. Petitioner deposited the amount to satisfy the aforesaid demand. By Finance Act, 1910 (hereinafter call ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the petitioner that the petitioner's application shall be processed after the outcome of the appeal filed in the CESTAT or the requirement under sub-section (2) of Section 69 of the Act, 1910 is meted out whichever is earlier. Petitioner sent a reminder to decide his application dated 02/7/2010 and thereafter has come up in this Court praying for the following reliefs: "(a) issue a writ, order or direction in the nature of Mandamus directing the respondent No.2 to exercise its power under Section 14 of the Central Excise Act, 1944 and summon the books of accounts of the petitioner or accept the figures mentioned in the demand order dated 24.2.2000 raised against the petitioner and decide the application dated 02.07.2010 submitted by the petitioner under Section 69(2) of the Finance Act, 2010 read with Rule 57CCC of the erstwhile Central Excise Rules 1944 within a period of 2 months. (b) issue any other suitable writ, order or direction, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. (c) award costs of the petition to the petitioner throughout." Learned counsel for the petitioner further submitted that the Appeal No.2828/2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 has jurisdiction to entertain the appeal only within 60 days of the order and under the proviso to Section 35 of the Act, at best he could have entertained the appeal within further 30 days and since the appeal was filed beyond 90 days, the appeal could not have been entertained and the dispute for all purposes came to an end when the demand was confirmed by the Deputy Commissioner, Central Excise dated 24/4/2000. He submits that the appeal filed by the petitioner before the Commissioner, Central Excise after several years of the adjudication order cannot be treated to be an appeal, nor the dispute can be treated to be pending, hence the benefit of Rule 57CCC cannot be made available to the petitioner and the application of the petitioner dated 12/7/2010 being not covered under Rule 57CCC, cannot be entertained and no direction need to be issued by this Court in this writ petition for deciding such application. He submits that the petitioner's appeal before the Commissioner, Central Excise, cannot be said to be pending since it was filed beyond the statutory period of limitation as provided under the Act, 1944. Learned counsel for the parties relied on various judgments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009. The appeal filed before the Tribunal was also delayed but the Tribunal vide order dated 12th July, 2010 although condoned the delay in filing the appeal before the Tribunal but dismissed the appeal by confirming the order of Commissioner, Central Excise (Appeals). The Tribunal upheld that Commissioner, Central Excise (Appeals) had no jurisdiction to condone the delay beyond 30 days after expiry of 60 days, hence the order of the Commissioner was perfectly justified. It is also relevant to note that against the order of the Tribunal dated 12th July, 2010 Central Excise Appeal was filed by the petitioner in this Court being Central Excise Appeal (Defective) No.104 of 2011, which appeals was also dismissed by this Court on 10th May, 2012. Copy of the order of the Division Bench of this Court dated 10th May, 2012 has been placed before us by learned counsel for the petitioner in which the relevant facts have been noticed. It is useful to note the order of the Division Bench dated 10th May, 2012 in which relevant facts were noticed, which were to the following effect:- "These appeals under Section 35(G) of the Central Excise Act have been filed against the order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fering from dementia and that the said partner was not entitled to receive the communication on behalf of the appellants' firm are not acceptable submissions. As submitted by the learned DR, it has been settled by the Hon'ble Supreme Court in the case of Singh Enterprises vs. C.C.E., Jamshedpur reported in 2008 (221) ELT 163 (SC) that the Commissioner (Appeals) can condone the delay only upto 30 days after expiry of 60 days which is normal period for per preferring appeal. The judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition Anantnag and another vs. MST, Katj others reported in 1987 (28) ELT 185 (SC), has sought to be relied upon by the appellants. The said judgment cannot be applied to the facts of the present case. Therefore, the Commissioner (Appeals) rejecting these appeals as barred by time cannot be assailed." Learned counsel for the appellant sought to contend that the person who had received the order, was not authorized to receive the communication. 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 that is R.K. Paliwal. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient cause is shown at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner." Section 35A of the Act which deals with procedure in appeal provides that Commissioner (Appeals) shall give opportunity to the appellant to be heard. Section 35A(4) provides that order of the Commissioner (Appeals) disposing of the appeal shall be in writing. Section 35B(1)(b) contemplates filing of appeal against the order of the Commissioner (Appeals) under Section 35A. The order passed by the Commissioner (Appeals) rejecting an appeal as barred by time is also an order of the Commissioner which can be appealed before the Tribunal which is clearly delineated from the scheme of the Act. The provisions of Section 35, 35A and 35B cannot be read in a manner so as to exclude the appeal before the Tribunal against the order of Commissioner (Appeals) rejecting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against certain orders, and an order of assessment under section 23 is one of them. The appellant therefore had a substantive right under section 30(1) to prefer appeals against orders of assessment made by the Income-tax Officer. Then, we come to section 30(2), which enacts a period of limitation within which this right is to be exercised. If an appeal, is not presented within that time, does that cease to be an appeal as provided under section 30(1)? It is well established that rules of limitation, pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with section 30(1) must, therefore, be an appeal in the eye of law, though having been presented beyond the period mentioned in section 30(2) it is liable to be dismissed in limine. There might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, section 28 of the Limitation Act; but there is none such here. On the other hand, in conferring a right of appeal under section 30(1) and prescribing a period of limitation for the exercise thereof separately u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal which may ultimately be found to be, incompetent, e. g., when it is held to be barred by, limitation or that it does not lie before that court or is concluded by a finding of fact under section 100 of the Civil Procedure Code. From the mere fact that' such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the court. Article 182(2) of the Indian Limitation Act prescribes three years period of limitation for the execution of a decree or order to run from the date of the final decree or order of the Appellate Court "when there has been an appeal." The Privy Council construed the latter phrase to mean that any application by a party to the appellate court to set aside or revise a decree, or order of a court subordinate thereto is an "appear, within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties, or it did not imperil the whole decree or order. They refused, to read into the words any qualification either as to the character of the appeal, or as to the parties to it. [Nagendra Nath Dey and Another v. Suresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated authority, he has jurisdiction to see only the existence of the conditions which make the Kar Vivad Samadhan Scheme operative in the case ..... whether the revision has merit or will be successful, is not his domain. That is the domain of the revising authority. That jurisdiction he may not be called upon to exercise if on determining the amount payable under the scheme the assessee deposits the same within the time prescribed. Because in such event the revision is deemed to be withdrawn under Section 90(4) of the Finance (No. 2) Act of 1998." Section 95(c) of the Finance Act, 1988 again came for consideration before the Apex Court in the case of Dr. Renuka Datla (Mrs.) and others vs. Commissioner of Income Tax, Karnataka and another reported in (2003)2 SCC 19. Following was laid down by the Apex Court in paragraph 19 of the said judgment:- "19. However, not all "tax arrears" under Section 87(m) are entitled to the benefit of the scheme. If no appeal etc. is pending in respect of the tax arrears, the benefit of the scheme is not available under Section 95(1)(c). If an appeal etc. is pending, it is not for the designated authority to question the possible outcome of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the year 1992-93 for failure to pre-deposit self assessed tax and the revision was filed much beyond the time which was also dismissed by the Commissioner subsequently for want of sufficient cause to condone the delay. The designating authority rejected the claim on the ground that revision was not pending, hence assessee was not entitled for benefit of Kar Vivad Samadhan Scheme. The decision was challenged in the High Court and the High Court set-aside the order of the designating authority against which revenue filed an appeal before the Apex Court. The Apex Court dismissed the appeal and held that revision has to be treated as pending. It is useful to quote paragraphs 6, 10, 11, 14, 15, 16 and 17:- "6. On the above facts, the department's case before us is that the scheme was enacted to resolve the pending litigation; that the purpose of the scheme was not to create artificial pendency of litigation; that the revisions were not pending on 1.9.1998 when the scheme came into force as the revisions were filed in November and December, 1998 along with applications for condonation of delay and consequently, such revisions did not come within the meaning of the word "pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed to decide and this determination is possible only after the appeal is heard but there is nothing to prevent a party from filing an appeal which may ultimately be found to be incompetent, e.g., when it is held to be barred by limitation. From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court. 16. To the same effect is the law laid down by the judgment of this Court in the case of Tirupati Balaji Developers (P) Ltd. v. State of Bihar Others reported in (2004) 5 SCC 1, in which it has been held that an appeal does not cease to be an appeal though irregular and incompetent. 17. For the aforestated reasons, orders of the designated authority rejecting the declarations filed by the assessee are quashed. We do not find any infirmity, to this extent, in the impugned judgment of the High Court. The appeal is accordingly dismissed, with no order as to costs. Again in the case of Swan Mills Ltd. vs. Union of India and others reported in (2007)7 SCC 29, similar issue came for consideration as to whether appeal filed beyond time can be treated to be pending. In the said case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -in-original dated 12th November, 1997/15th May, 1998 was in time and it has been so held ultimately by the Tribunal. Therefore, the Designated Authority ought to have considered the matter. The High Court noted that the appellant kept quite and did not take steps in challenging the order dated 25th February, 1999 passed by the Designated Authority rejecting the declaration made by the appellant under KVSS for some time but filed an appeal against the order dated 25th February, 1999 passed by the Commissioner of Central Excise (Appeals) rejecting the appellant's appeal as time barred by filing an appeal before the Tribunal. By order dated 29th November, 1999 the Tribunal allowed the appeal setting aside the order passed by the Commissioner of Central Excise (Appeals) and remanded the matter to the Commissioner (Appeals). 22. The ratio in Shatrusailya's case (supra) is clearly applicable. In the instant case the appeal is to be treated as pending. The High Court was not justified in dismissing the writ petition. The impugned order of the High Court is set aside. Orders of the Designated Authority rejecting the declaration filed by the appellant are quashed. The appeal is allowed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned, rejected the declaration in relation to assessment by observing that in absence of any proceedings pending, the petitioner was not entitled to seek benefit under KVVS. On behalf of the petitioner, it was submitted by the learned Senior Advocate that the issue was no longer res integra, as, in almost similar set of circumstances, this High Court in case of Shatrushailya Digvijaysingh Jadeja Vs. CIT, [2003] 259 ITR 149 (Guj) came to the conclusion that there was no distinction between a proceeding which is pending, whether the proceeding has been initiated within a period of limitation, or beyond the period of limitation accompanied by an application seeking condonation of delay. That, the aforesaid view expressed by this High Court has been confirmed by the Apex Court in case of Commissioner of Income Tax Vs. Shastrusailya Digvijaysingh Jadeja, [2005] 277 ITR 435 (SC). The issue raised by the present petition, therefore, stands concluded in favour of the petitioner by virtue of ratio enunciated by the Apex Court on analysing the scheme of KVSS. It was not open to the Designated Authority to decide in the proceedings under KVVS whether the revision application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. Thus, the arguments of Sri Kesarwani that the cases relied by learned Counsel for the petitioner are not applicable, cannot be accepted. Secondly; 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. Thus, it cannot be said that the order of Commissioner dismissing the appeal as barred by time had ended the dispute and appeal before the Tribunal challenging the said order of the Commissioner cannot be treated to be "an appeal pending" Sri Kesarwani learned Counsel for the respondent had relying on the judgment of the supreme Court in Singh Enterprises v. CCE, Jamshedpur and Ors. 2008 (221) ELT 163 submitted that Commissioner Appeal can condone the delay only upto 30 days after expiry of 60 days. There cannot be any dispute to the proposition as laid down by the apex Court in the case of Singh Enterprises (supra) but it cannot be denied that appellate tribunal can always se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not refer to pendency of appeal or revision rather it uses a word of wider connotation i.e. "a dispute". Word "dispute" has been defined in Concise Oxford English Dictionary as follows: "1 argue about (something). Question the truth or validity of (a statement or alleged fact). 2 compete for. 3 archaic resist (a military landing or advance). A disagreement or argument. A disagreement between management and employees that leads to industrial action" The apex Court in (2001) 1SCC 43 Canara Bank vs National Thermal Power and others had laid down following in paragraph 12: "......The meaning of word "dispute" is, 'a controversy having both positive and negative aspects. It postulates the assertion of a claim by one party and its denial by the other." Black's Law Dictionary Sixth Edition defines dispute as follows: "Dispute. A conflict or controversy; a conflict of claims or rights, an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other. The subject of litigation; the matter for which a suit is brought and upon which issue is joined, and in relation to which jurors are called and witnesses examined." The word "dispute" ..... X X X X Extracts X X X X X X X X Extracts X X X X
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