By TIOL News Service

AHMEDABAD, MAR 19 2014: IT is the case of the petitioner that 10 consignments of processed fabrics were removed for export from the factory of one M/s.Gujarat Polyfilms by the petitioner as a merchant exporter. M/s.Gujarat Polyfilms, as manufacturer of the fabric had paid excise duty of Rs.8.07 lakhs on such fabrics and CENVAT credit of duty paid on inputs like yarn was utilized for discharging its duty liability. The petitioner company as a merchant exporter lodged rebate claims upon receiving documents of proof of export.

SCN was issued asking the petitioner as to why rebate claim should not be rejected and penalty should not be imposed on M/s.Gujarat Polyfilms. The Dy.Commr. passed order dated 28.6.2011 rejecting the rebate claim of the petitioner on the ground that permission for sending yarns for weaving on job work basis was allowed to M/s.Gujarat Polyfilms and further permission for sending unprocessed fabrics for dyeing and printing was issued on 29.3.07 whereas M/s.Gujarat Polyfilms had sent unprocessed fabrics to the job workers for dyeing and printing before that and therefore, CENVAT credit taken on inputs used for such fabrics was not admissible. The Deputy Commissioner also imposed penalty of Rs.5,000/- on M/s.Gujarat Polyfilms.

M/s.Gujarat Polyfilms filed appeal before the Commissioner (Appeals) on 18.7.2011 raising several grounds. No appeal was filed by the present petitioner.

According to the petitioner, under wrong impression that the appeal on behalf of the petitioner company has also been filed by the legal consultant, no steps were taken independently for challenging the said order of the Deputy Commissioner.

On 25.9.2012, the appeal was taken up for hearing by the Commissioner (Appeals) and at that stage it was realized by the petitioner that no appeal was filed by them and, therefore, on 27.9.2012, they filed an appeal with a request for condonation of delay.

On 29.11.2012, the Commissioner (Appeals) passed two separate orders. The appeal of M/s.Gujarat Polyfilms was allowed setting aside the order of penalty and the appeal of the petitioner was rejected as time-barred and on the ground that the delay being such that the Commissioner had no power to condone.

Against this order, the petitioner filed a Writ Petition and submitted that there was bonafide error on the part of the Consultant in not filing two separate appeals though technically needed; all along, the intention of the petitioner was to question the order of the Deputy Commissioner rejecting the rebate claims; mere lapse of presentation of appeal should not result into injustice because of operation of statute.

The counsel for the Revenue opposed the petition contending that the appeal was hopelessly barred by limitation and that the Commissioner (A) had rightly rejected the same since the statute did not permit condonation of delay beyond a period of 30 days after the limitation of 60 days prescribed.

The High Court after adverting to the decisions in Commissioner of Customs & Central Excise v. Hongo India (P) Ltd. - (2009-TIOL-48-SC-CX-LB) and D.R.Industries Ltd. v. Union of India, - (2008-TIOL-300-HC-AHM-CX), observed -

"10. …, we cannot view the limitation imposed under the statute leniently so as to bring through the backdoor the concept of sufficient cause flowing from section 5 of the Limitation Act. Even otherwise, the delay remains largely unexplained. The statute provided for a limitation of 60 days with a maximum possible extension of further 30 days. The statutory scheme thus recognizes that the right to appeal beyond the said period would be lost without any possibility of extension. Had there been some extraordinary circumstances preventing the petitioner from presenting the appeal within such time coupled with the gross injustice on account of termination of appellate remedy, we would have still considered the case of the petitioner for invoking the extra ordinary writ jurisdiction. In the present case, however, we find that the explanation for delay itself is insufficient. Learned counsel for the petitioner had made available certain documents such as, appeal memo of the petitioner as well as that of M/s. Gujarat Polyfilms which documents were not part of the writ petition. In the appeal filed by M/s. Gujarat Polyfilms, the statements of facts as well as stand of the appellant to the objections of the Department were from the stand point of the appellant, viz. M/s. Gujarat Polyfilms. The present petitioner, viz., M/s. Vikram Knittex Pvt. Ltd. was referred to as the party who had approached the said appellant for purchase of goods for exports. The said appeal therefore was only by M/s. Gujarat Polyfilms. No contrary intention could be seen from the entire statement of facts and the reply of the appellant. It is true that in the prayer in addition to the request for quashing the order of the Deputy Commissioner, it was also prayed that pending rebate claims of Rs.8.07 lacs be sanctioned. This one line statement would not convert the appeal of M/s. Gujarat Polyfilms into one filed by the present petitioner. If this were so, there was no occasion for the petitioner to file a separate appeal and could easily have sought amendment of technical nature before the appellate Commissioner and pressed its own appeal."

Holding that in the appeal filed by the petitioner, much belatedly, a statement was made that the delay was due to oversight, and that such general statement would not explain such inordinate delay particularly when the statute puts a lid on the number of days of delay that the Commissioner can condone beyond which the appeal simply cannot be entertained, the High Court dismissed the petition.

(See 2014-TIOL-333-HC-AHM-CX)