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CX - Last date of filing appeal being Sunday, appeal filed on next day, Monday, cannot be said to have been delayed but filed in time in view of s.10 of General Clauses Act, 1897: CESTAT

By TIOL News Service

MUMBAI, SEPT 29, 2016: THE Commissioner (Appeals) dismissed the appeal holding that the appellant has not filed any condonation of delay application and the appeal has been filed beyond the period of limitation.

The facts are that the appellant had received the order of the adjudicating authority on 17.12.2008 and the appeal was to be filed within 60 days before the Commissioner (Appeals), i.e. on or before 15.2.2009, but the same has been filed on 16.2.2009.

As per Section 35(1) of the CEA, 1944 an appeal before Commissioner (Appeals) has to be filed within 60 days from the date of communication of the order of the adjudicating authority. This period of 60 days can be extended by the Commissioner (Appeals) by 30 days. In this case, the Commissioner (Appeals) has dismissed the appeal on the ground that the appeal has been filed beyond 60 days of the adjudication order and on the added ground that no application for condonation of delay was filed.

The appellant submitted that although the appeal was to be filed on or before 15.02.2009, the said day was a Sunday and, therefore, the appeal filed on the next working day viz. on 16.02.2009 could not be said to have been delayed.

The appellant relied on the decisions in Indian Seamless Steel and Alloys Ltd. - 2003-TIOL-06-HC-MUM-CX; AmeyaDyechem Pvt. Ltd. - 2010-TIOL-1228-CESTAT-MUM whereas the AR while relying on the apex court decision in Raja Mechanical Co. (P) Ltd. - 2012-TIOL-36-SC-CX stressed on the fact that no application for condonation of delay was filed and, therefore, the appeal was rightly dismissed

The CESTAT observed -

"5. …, I find that the statutory period for the appeal as per Section 35(1) ibid expires on 15.2.2009, which was a Sunday. Section 10 of the General Clauses Act, 1897 deals with the situation where the last date of filing the appeal is being Sunday, then the next working day shall be the last date for filing the appeal. In this case also, as the last date of filing the appeal was 15.2.2009 being Sunday, the appeal would have to be filed by 16.2.2009. As the appeal has been filed on 16.2.2009, I hold that the appeal is filed within the period of limitation of 60 days and the delay is condonable. Hence the impugned order holding that the appeal has been filed beyond the period of limitation is set aside and the matter is remanded back to the Commissioner (Appeals) to pass order on merits after giving an opportunity of being heard to the appellant."

The matter was remanded.

(See 2016-TIOL-2572-CESTAT-MUM)


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