Case Law Details
Rosa Impex Private Limited Vs Commissioner of CGST (CESTAT Mumbai)
In acceptance of the death of Managing Director and brain haemorrhage of the present Director of the Appellant Company as legal disability due to mental insanity, etc. delay in filing the appeal before the Commissioner (Appeals) is condoned at this end by invoking the principle enumerated under Section 6 of the Indian Limitation Act and the matter is remanded back to the Commissioner (Appeals) for a de novo hearing on merit of the appeal against the order passed by the refund sanctioning authority.
FULL TEXT OF THE CESTAT MUMBAI ORDER
These matters were heard on 20.05.2022 and both are taken up for order today.
2. Director of Appellant Company Mr. Jinav Ghatalia argued the matters on the other day and submitted that learned Commissioner (Appeals) had rejected their appeals solely on the ground of delay of 1354 days in filing appeals before the Commissioner (Appeals) against the order of rejection passed by the refund sanctioning authority who erroneously gave a finding that the same is one of rebate, supposed to be Governed under Notification No. 41/2012-ST dated 29.06.2012 in which event the refund application, filed in 2014 should have been filed within one year from the date of export made in 2012. He submits that the service provider had realised the Service Tax paid on postal parcel charges which were not payable but that matter was not considered by the learned Commissioner (Appeals).
3. In justification of the grounds of delay, he submitted death certificate of the Managing Partner who died just three months before the Order-in-Original was passed on 30.06.2014 in respect of two claims and also submitted the his own discharge certificate from the Hospital evidencing Brain Haemorrhage, to which effect he submitted an affidavit and informed that as a consequence of a fatal car accident on dated 24.07.2015, he had lost his memory power for about 15 months due to haemorrhagic bleeding and injury in brain and only after complete recovery he took up management of the company that was going through a very bad phase and immediately after attending normal health condition, he filed appeal before the Commissioner (Appeals). In submitting the decision of this Tribunal passed in Yapp India Automotive Systems Pvt. Ltd. Vs. CCE & ST Pune-I, 2019 (365) ELT 109 (Tri.-Mum.) and by the Apex Court in case of the Collector, Land Acquisition Vs. Mst. Katiji, MANU/SC/0460/1987, Popat and Kotech Property Vs. State Bank of India Staff Association, MANU/SC/0516/2005, Manoranjan Pradhan Vs. Union of India MANU/MH/1992/2016, State of Bihar and Ors. Vs. Kameshwar Prasad Singh, MANU/SC/0358/2000, he prayed for acceptance of this appeal in condoning the delay and directing the Commissioner (Appeals) to decide the appeal afresh on merit.
4. In response to such submissions learned Authorised Representative Mr. Onil Shivadikar argued that appeal is not maintainable in CESTAT on two counts. Firstly, Commissioner (Appeals), as per provisions of the statute prescribed under Section 85(3) of the Finance Act, 1994 had no condonable power beyond 60 plus 30 days, for which no irregularity can be attributed to his order. Secondly, the issue in this appeal being one of refund of rebate, CESTAT has no jurisdiction to entertain the appeal in view of operation of Section 83 of the Finance Act, 1994 read with Section 86 amended provisions vis. a. vis Section 35EE of Central Excise Act, 1944.
5. In submitting judicial decision reported in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur – [2008 (221) ELT 163 (SC)] of the Hon’ble Supreme Court and that of the Hon’ble Bombay High Court reported in 2012-TIOL-278-HC-MUM-CX in the case of M/s. Raj Chemicals vs. Union of India & Ors. he argued that the issue has been set at rest and it has been recognised that after 90 days Commissioner (Appeals) cannot entertain an appeal against an Order-in-Original passed by the Adjudicating authority. He also submitted two judgements of Co-ordinate Benchs of CESTAT passed in the case of M/s. Sai Shree Construction Vs. Commissioner of Customs, Central Excise & Service Tax reported in 2019 (2) TMI 1822 CESTAT-New Delhi and M/s. Bilt Graphic Paper Products Ltd. Vs. CCE, Nagpur reported in 2019-TIOL-2354-CESTAT-MUM and argued that both the Benches, being Division Bench, have refused to acknowledge the principle laid in Yapp India Automotive Systems Pvt. Ltd. cited supra by holding that artificial distinction is made between the writ jurisdiction and appellate jurisdiction of the Tribunal. Further, the ratio laid in Yapp India Automotive Systems Pvt. Ltd. was held to be per-incurium that can not to be followed, as has been held in M/s. Bilt Graphic Paper Products Ltd., for which he prayed for no interference in the order passed by the Commissioner (Appeals).
6. On perusal of the case record, additional documentary proof in support of bonafide delay occasioned due to events beyond control of the Appellant and the relied upon case laws as well as provision governing refund vis. a. vis rebate, Co-ordinate Benches having no weight being attached to a Division Bench in the absence of letter patent appeal like that being available with the High Courts, I refrain myself from analysing the distinction made in the judgment of this Tribunal in M/s. Sai Shree Construction and M/s. Bilt Graphic Paper Products Ltd. except that judicial proprietary demands respect for order passed by Co-ordinate Benches has become an accepted legal principle by virtue of consistent decisions of the High Courts and Supreme Court, one of which was reported in 2017 (349) ELT 203 (S.C.) and another was passed recently on 13.09.2021 in the case of UP Jal Vidyut Nigam Vs. Balbir Singh. Rule of precedent prevailing in India indicates that in the case of judgment of Hon’ble Supreme Court, “the new shall prevail over the old”. This being the legal position propounded by the Hon’ble Supreme Court, in following the direction of the Hon’ble Supreme Court made in the MP Steel Corporation judgment passed on dated 23.04.2015 that the spirit of the principle laid down in the Indian Limitation Act for extension of the limitation period upon contingencies/circumstances enumerated between Section 6 and 24 of the said Act is to be pressed into service in advancing substantial justice, findings in Yapp India Automotive Systems Pvt. Ltd., cited supra was made. Further, as has been held in the Yapp India Automotive Systems Pvt. Ltd. judgment this Tribunal has not been divested of its power to condone the delay and remand the appeal for re-adjudication otherwise an express restriction would have been made in the Customs Act itself under Section 129A or Section 86 of Finance Act, 1994. More importantly the Respondent-Department has withdrawn the appeal filed against Yapp India Automotive Systems Pvt. Ltd. order from the Hon’ble High Court of Bombay making its findings a binding precedent. Therefore, in acceptance of the death of Managing Director and brain haemorrhage of the present Director of the Appellant Company as legal disability due to mental insanity, etc. delay in filing the appeal before the Commissioner (Appeals) is condoned at this end by invoking the principle enumerated under Section 6 of the Indian Limitation Act and the matter is remanded back to the Commissioner (Appeals) for a de novo hearing on merit of the appeal against the order passed by the refund sanctioning authority. The Commissioner (Appeals) is supposed to give his/her findings also on the nature of refund claim if made as a claim on rebate or claim on deposit made under mistake of fact, which reference to the judicial precedent. Hence the order.
ORDER
7. Both the appeals being filed on same set of facts, both are allowed. Delay of 1354 days in filing both appeals before the Commissioner (Appeals) is hereby condoned and the matter is remanded back for a de novo hearing on the basis of direction made above.
(Order pronounced in the open court on 14.07.2022)
