By TIOL News Service

MUMBAI, FEB 08, 2019: THE assessee is in appeal against the o-in-a dated 17.04.2018 passed by the Commissioner(A).

They have also filed an application for Condonation of the delay (COD) of 38 days in filing this appeal and prayed for lenient consideration.

The ground for this delay is - that there was labour unrest and strike because of which staff and workers were not cooperating with the management and due to such non-cooperative attitude, appellant was unable to trace the correct date of receipt of impugned order as the same was received by staff from whom the order was later recovered.

The appellant referred to the copies of police report etc. annexed to COD and pleaded that those documents would reveal unrest and strike by the staff not only in the month of November 2016 to September 2017 and December 2017 to January 2018 but that the unrest continued even when the matter was adjudicated upon and appeal was heard by the Commissioner (Appeals). Furthermore, due to this unrest, even the appeal before the first appellate authority could not be filed within the stipulated time and that formed the sole ground of rejection of appeal by the Commissioner (Appeals).

The AR, while conceding that the Commissioner (Appeals) had not heard the appeal on merit, informed that since there was delay of over 60 days in filing the appeal, the same was beyond the condonable period prescribed under s.35(1) of the CEA, 1944.

The Single Member Bench considered the submissions and observed that the delay of 38 days in filing appeal before the CESTAT, which is attributed to strike and unrest in the factory, appeared to be a 'sufficient cause' for the purpose of condonation.

Placing reliance on the apex court decisions in this regard, the Member(Judicial) condoned the delay and admitted the appeal for hearing.

Noting that the Commissioner(A) had not discussed the merits of the case but rejected the appeal purely on the ground of limitation without following the guidelines contained in the apex court ruling in Saheli Leasing & Industry Ltd. - 2010-TIOL-37-SC-IT-LB and since the Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of the adjudicating authority, it was a fit case which necessitated re-adjudication by the Commissioner (Appeals) as mandated under Section 35A(3), the Bench opined.

The Bench, therefore, held -

"13. Admittedly, there was delay in filing appeal by the appellant at the Commissioner (Appeals) end and the delay being 60 days he is not empowered by the statute to condone the delay. In view of the decision of this Tribunal in Yapp India Automotive decision dated 21.06.2018/10.07.2018 - 2019-TIOL-370-CESTAT-MUM, delay of 60 days in filing appeal before the Commissioner (Appeals) is also condoned at this end and the matter is rem anded back for re-adjudication by the Commissioner (Appeals)."

In passing : Two wrongs make a right - Proverb

(See 2019-TIOL-419-CESTAT-MUM )