Websol Energy Systems Ltd. Vs Commissiner of Cent. Excise (Calcutta High Court)
Calcutta High Court held that delay of 180 days in filing of an appeal before Tribunal condoned since Tribunal is the last fact finding authority and delay of 180 days cannot be stated to be inordinate nor the assessee can be stated to have been not diligent in prosecuting matter.
Facts- Assistant Commissioner confirmed demand of Rs.3,27,507/- under section 11A of the Act, imposing an equivalent amount of penalty in terms of the provisions of section 11AC and charging interest at appropriate rate under section 11AB. The appellate authority by order dated 31.8.2006 dismissed the appeal. Appeal before Tribunal was not filed within the period of limitation but there was a delay of 180 days in filing the appeal. However, the appeal was dismissed and delay was not condoned.
Conclusion- Held that the delay of 180 days cannot be stated to be inordinate nor the appellant/assessee can be stated to have been not diligent in prosecuting the matter. The appellant had contested the show cause notice issued by the Assistant Commissioner, Central Excise and submitted written submissions before the adjudicating authority and personal hearing which was granted on 18.8.2004 cannot be stated to have been not diligent to put forth their submissions before the adjudicating authority. The adjudicating authority having held against the appellant/assessee by passing Order-in-Original dated 25.7.2005, the appellant immediately preferred appeal before the Commissioner (Appeals) contesting the adjudication order on merits. However, the appeal was dismissed by the appellate authority. Against which, the assessee preferred appeal before the Tribunal. The learned Tribunal being the last fact finding authority in the hierarchy of authorities as provided under the provisions of the Central Excise Act, 1944, the remedy before the learned Tribunal is not only an efficacious remedy but an effective remedy. This is more so because if the assessee is aggrieved by the order passed by the Tribunal and prefers an appeal before this Court under section 35G of the Act, the Court can consider the appeal only if a substantial question of law arises for consideration. Therefore, we are of the view that the appellant should be granted an opportunity to contest the matter on merits so as to enable the learned Tribunal to take a decision on merits after considering the submissions of the appellant/assessee.
