The Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that the date of filing the cross objections (which is not the correct Form) has to be taken into account while considering the issue of limitation. The Commissioner (Appeals) took a pedantic approach by depriving appellant’s right to appeal citing limitation.
The bench of Binu Tamta (Judicial Member) and P.V. Subba Rao (Technical Member) has observed that The Commissioner (Appeals) rejecting the appeal as time barred, having been filed beyond the prescribed time limit under the provisions of Section 35 of the Central Excise Act, 1944 is wrong.
The issue raised was whether the date of filing the cross objections (which is not the correct Form) has to be taken into account while considering the issue of limitation, in preferring the appeal before the Commissioner, it is not necessary to go into detailed facts.
The order was received by the appellant/assessee on 8.2.2019 and instead of filing the appeal in Form No.E.A.-1 under Section 35 of the Central Excise Act, 1944, they filed the cross objections on 15.03.2019 before the Commissioner (Appeals), Alwar.
Subsequently, vide their letter dated 25.05.2019 (received on 7.6.2019), the appellant submitted that they have wrongly filed the cross objections and, therefore, they have now submitted the appeal under proper form.
The department contended that the memorandum of cross objections filed by the appellant was not the prescribed form of the appeal and by the time, the appeal was filed in the prescribed form, there was delay of 122 days from the date of communication of the order-in-original, which is beyond the period of limitation prescribed under the provisions of Section 35 of the Act and hence, there is no ground for interference.
The tribunal held that it is only a procedural error, which can be rectified and does not warrant dismissal of the appeal. The limitation would relate back to the date when the original memorandum (though not in the correct form) was filed before the Commissioner (Appeals).
The tribunal the appeal filed by the appellant under Section 35 have to be treated as within time.
The tribunal ordered and remand the matter back to the Commissioner (Appeals), to consider the appeal on merits in accordance with law.
Case Details
Case Title: M/S.Tokai Rubber Auto Parts India Pvt.Ltd. Versus Commissioner Of Central Excise
Case No.: EXCISE APPEAL NO. 50798 OF 2020
Date: 17/02/2025
Counsel For Appellant: B.L. Yadav, Consultant
Counsel For Respondent: Rakesh Agarwal, Authorised Representative
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