MODERN SYNTEX (I) LTD. Vs. CCE

JUDGEMENT

(1.) The appellants had filed two refund claims, one for the duty of Rs. 1,44,68,797.43 for the period 22.7.86 to 13.7.90 and the other for the duty of Rs. 9,79,102.54 for the period 1.7.90 to 21.11.90. These claims were rejected by the original authority by order dated 30.3.2001 on the ground that the claimant could not prove that they had not passed on the burden of the above duty to their customers. An appeal against the Assistant Commissioner's order was filed with the Commissioner (Appeals) on 14.11.2002 and the same was dismissed as time -barred. Hence, the present appeal of the party.

(2.) We have heard both the sides. The Counsel for the appellants gave an account of the facts pertaining to the delay involved in the filing of appeal with the lower appellate authority. The appellants' factory was lying closed since 1996 due to labour trouble. On account of the lock -out, the Assistant Commissioner's order returned undelivered. Though the order was subsequently (on 9.4.2001} served on Shri Rajesh Goyal, Vice -President of the company who was looking after the affairs of the closed factory, the order happened to be misplaced. It was only in November 2001 that the appellants came to know that an order had been passed on their refund applications. Subsequently, they applied for a certified copy of the order which was received on 11.10.2002. The Counsel pointed out that the appeal against the Assistant Commissioner's order had been filed within the prescribed period of sixty days from the said date (11.10.2002) on which the certified copy of the said order had been received by the appellants. However, with reference to the date (9.4.2001) on which a copy of the Assistant Commissioner's order had been delivered to Shri Rajesh Goyal, the appeal was delayed by a period of one year seven months and six days. The learned Counsel, relying on the Allahabad High Court's judgement in Jai Hind Bottling Company (P) Ltd v. Commissioner (Appeals), 2002 (83) ECC 587 (All): 2002 (146) ELT 273 submitted that there was sufficient cause in this case for condoning such delay and the Commissioner (Appeals) ought to have condoned the delay under Section 5 read with Section 29(2) of the Limitation Act, 1963. Adverting to the merits of the refund case, Counsel submitted that the appellants had a strong case on merits and, therefore, the lower appellate authority's action had resulted in miscarriage of justice. He prayed that, for the ends of justice, the delay be condoned and the Commissioner (Appeals) be directed to dispose of the assessee's appeal on its merits. In this connection, Counsel relied on the Supreme Court's order in ITC Ltd. v Union of India, 1998 (101) ELT 9 (SO. Reliance was also placed on the Apex Court's decision in the case of Collector v. Mst. Katiji and Ors., 1987 (13) ECC 27 (SC) : 1987 (28) ELT 185 (SC).

(3.) The DR submitted that the Commissioner (Appeals) could condone delay of appeal upto thirty days only at the material time and that the Limitation Act was not applicable to appeals preferred to him. The learned DR relied on the Supreme Court's decisions in the cases of Commissioner of Sales Tax v. Parson Tools and Plants, AIR 1975 SC 1039 and Sakuru v. Tanaji, AIR 1985 SC 1279. It was further submitted that the appellants had not succeeded in substantiating their plea of sufficient cause for condonation of the delay in question. Each of the decisions cited by the Counsel was sought to be distinguished on facts.