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E.T.A. General Pvt. Ltd. Versus The Additional Commissioner of Central Excise, The Commissioner of Service Tax (Appeals-II)

2016 (6) TMI 1002 - MADRAS HIGH COURT

Delay in filing of an appeal before the Commissioner of Central Excise (Appeals) - Condonation of delay - Order impugned before the appellate authority is dated 09.03.2012. Appeal has been filed on 14.08.2012. Admittedly, it is within the extended period of limitation - Held that:- When the Hon'ble Supreme Court has described the manner of disposal of an appeal, as illegality, the same can be corrected by this Court, in exercise of the powers under Article 226 of the Constitution of India and no .....

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ed before the First appellate authority. - Writ Appeal No. 428 of 2016, C.M.P. No. 6202 of 2016 - Dated:- 21-6-2016 - S. Manikumar And D. Krishnakumar, JJ. For the Appellant : Mr. Joseph Prabakar For the Respondents : Mr. A. P. Srinivas, SPC ( C & CE ) JUDGMENT [ Judgment of the Court was made by S. Manikumar, J. ] Writ Appeal is directed against the order made in W.P.No.5501 of 2016, declining to issue a Writ of Certiorari, to quash the Order-in-Appeal No.349/2015 (STA-II), dated 30.11.2015 .....

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e period of limitation has to be calculated, taking into account, the date of impugned order and not the date on which, the appeal was preferred. Adverting to the submissions, a learned single Judge of this Court in W.P.No.21811 of 2013, dated 13.08.2013, passed the following orders, 4. There is no dispute that prior to 28.05.2012, three months time was given to file appeal against the order passed by the Statutory Authority. There will be a grace time of three months after the expiry of initial .....

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into force and having found that the appeal was preferred beyond the period of three months, it was rejected. 5. The materials available on record clearly show that the order passed by the original authority was on 29.02.2012. The Amendment came into force on 28.05.2012. Therefore, the petitioner is justified in its contention that the appeal should have been taken up on file in accordance with the regulations in force prior to 28.05.2012. In case the time limit prescribed for filing an appeal i .....

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ed 09.03.2012. Appeal has been filed on 14.08.2012. Admittedly, it is within the extended period of limitation. The cause shown for the delay in filing the appeal is that the original impugned order was referred to the learned counsel for opinion. The entire set of papers were misplaced by the junior counsel and on 06.08.2012, the papers were traced. Thereafter, the appeal was prepared and filed. Thus, the delay of two months and seven days in filing the appeal, has been explained as beyond the .....

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er: 9 (i). It is observed that the date of receipt of the impugned order is 09.03.2012 and the appeal was filed on 14.08.2012. During the material period, as per Section 85(3) of the Act (as it stood before 28.05.2012), an appeal to Commissioner (Appeals) shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority. As per Proviso to the said Section, where sufficient cause was shown, an appeal can be allowed to be presented within a fur .....

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7 days in filing the appeal since the law officers are expected to be more vigilant and alert in complying with the provisions of law. Therefore, the appeal is liable for rejection as time barred. 5. The appellate authority, vide order, dated 30.11.2015, has dismissed the appeal both on delay and merits. The abovesaid order passed by the Commissioner of Service Tax (Appeals-II) in Order-in-Appeal No.349/2015 (STA-II), dated 30.11.2015, is challenged in W.P.No.5501 of 2016. Though before the Wri .....

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g regard to the objection of the respondent that an appeal remedy is provided under the statute to challenge the correctness of the order of the appellate authority, before CESTAT, W.P.No.5501 of 2016 has been dismissed on 15.02.2016 and thus, the present appeal. 6. By inviting the attention of this Court to the order made in W.P.No.21811 of 2013, dated 13.08.2013, Mr.Joseph Prabakar, learned counsel for the appellant submitted that when this Court had already held that the Commissioner of Centr .....

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in 2014-TIOL-550-HC-ALL-ST, learned counsel for the appellant submitted that CESTAT, Madras, ought not to have gone into the merits of the case, when the appeal has been held as time barred. 7. To sustain the order, impugned before us, Mr.A.P.Srinivas, learned counsel for the Revenue submitted that the Order-in-Appeal No.349 of 2015 (STA-II), dated 30.11.2015, passed by the Commissioner of Service Tax (Appeals-II), can always be challenged before CESTAT, Madras. He further submitted that when t .....

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sment, dated 29.02.2012, correctness of the same has been tested before the Commissioner of Central Excise (Appeals). Vide order, dated 24.07.2013, he has rejected the appeal, as time barred. When the said order, dated 24.07.2013, was tested in W.P.No.21811 of 2013, the Writ Court, vide order, dated 13.08.2013, has categorically held that the Commissioner of Central Excise (Appeals), was not justified in rejecting the appeal, on the ground of limitation. The writ Court has also directed him to r .....

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mine the bona fides or the sufficiency of the cause shown. In the instant case, what the Commissioner of Central Excise (Appeals), has done is that, he has examined the sufficiency of the cause shown and held that misplacement of the papers by the learned Advocate, cannot be a sufficient cause for condonation of delay of two months and seven days, in filing the appeal and that the appellant was not vigilant in complying with the provisions of law. 10. When the Writ Court, vide order in W.P.No.21 .....

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ent could have preferred an appeal or even sought for review. Either of the above, has been done by the Department. Therefore, the directions of the Writ Court made in W.P.No.21811 of 2013, dated 13.08.2013, ought to have been complied with, by registering the appeal and thereafter, the appellate authority ought to have decided the appeal, on merits, instead of re-visiting the cause shown for condonation and reject the appeal, on the grounds of limitation. No doubt, earlier in W.P.No.21811 of 20 .....

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questions of law raised by the assessee, was when the Tribunal having held that proceedings were barred by limitation, has committed any illegality in deciding the question on merits. Whether the finding of the Tribunal on merits, is liable to be set aside?" 12. While addressing the abovesaid substantial question of law, decision of the Hon'ble Supreme Court in State Bank of India v. B.S.Agricultural Industries reported in 2009 (5) SCC 121, has been pressed into service, wherein, the Ho .....

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ed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such .....

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ra), squarely applies to the facts on hand, wherein, CESTAT, Madras, while dismissing the appeal as time barred, has entered into the merits of the case and dismissed the same, on merits. In the words of the Hon'ble Supreme Court, that would be an illegality. 14. Though Mr.A.P.Srinivas, learned counsel appearing for the Revenue submitted that the correctness of the order impugned before us, can be decided in an appeal before the CESTAT and prayed to sustain the order, dated 15.02.2016 in W.P .....

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