HERO MOTORS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THOUGH in respect of these three appeals, only the miscellaneous application for early hearing was listed today, after hearing this matter for some time, we were of the view that since only a short issue is involved and the same stands settled by the judgment of the Apex Court, the appeals can be taken for final disposal. Accordingly the miscellaneous application are allowed and the matter was heard for final disposal.

(2.) SH . Aditya Kumar, Advocate, the learned counsel for the appellant, pleaded that just because the appellant had given up their claim for interest for the period of delay in course of proceedings before the Assistant Commissioner, they would not be prevented from raising this issue before the Appellate Authority, that the appellant may have been compelled by the sanctioning authority to furnish such letters, that the Apex Court in the case of Dunlop India Ltd. & Madras Rubber Factory Ltd. v. Union of India and Others reported in : 1983 (13) E.L.T. 1566 (S.C.) has held that there is no estoppel in law against a party in taxation matters and therefore, much significance should not be attached to the fact that the appellant had accepted before the Customs Authority that the goods imported by them are V.P. Latex under I.T.C. Item No. 87, as they may have accepted this classification under some misapprehension or in accordance with the wishes of the authorities, that the ratio of this judgment of the Apex Court is squarely applicable to the facts of the case, that when Section 11BB provides that interest for the period of delay beyond the period of three months from the date of filing of the refund claim would be payable by the Govt. at the notified rates and since in this case the authorities did not decide the refund claims within the period of three months from the date of filing of refund claims, the appellant are entitled to interest on the refund amount at the notified rates in terms of the provisions of Section 11BB, that the Apex Court in the case of Union of India v. UP Twiga Fibre Glass Ltd., reported in, 2000 (243) E.L.T. A27 (S.C.) has held that a close reading of Section 11BB, which now governs the question relating to payment of interest on belated payment of refund, makes it clear that relevant date for the purpose of determining the liability to pay interest is not the determination under Sub -section (2) of Section 11B to refund the amount to the applicant and not to be transferred to the Consumer Welfare Fund, but the relevant date is to be determined with reference to date of application laying claim to refund and nonpayment of refund to the applicant within three months from the date of filing of such application brings in the starting points of liability to pay the interest, notwithstanding the date on which decision has been rendered by the competent authority as to whether the amount is to be transferred to Consumer Welfare Fund or to be paid, that two appeals have been wrongly rejected by the Commissioner (Appeals) as not maintainable on the ground of time -bar, as though there was delay of 29 days and 10 days beyond the prescribed limitation period of 60 days for filing of appeals, the appellant had given valid reasons for this delay and hence the Commissioner (Appeals) has wrongly refused the condonation of delay and that in view of the above, the impugned order is not correct.

(3.) WE have considered the submissions from both the sides and perused the records. The impugned order passed by the Commissioner (Appeals) is in respect of three appeals filed by the appellant out of which two appeals were rejected as non -maintainable on the ground of time -bar for delay of 29 days and 10 days in filing of appeals. As per the provisions of Section 35A of the Central Excise Act, 1944, the Commissioner (Appeals) on being satisfied that the appellant was prevented for sufficient cause from filing of appeals within the prescribed limitation period of 60 days, may allow an appellant to present the appeal within the further period of 30 days. Thus while the normal limitation period for filing appeal before the Commissioner (Appeals) is 60 days from the date of communications of the order, if the Commissioner (Appeals) is satisfied that there was valid reason for delay in filing of appeals, he can condone the delay up to 30 days. He has no powers of condonation of delay beyond 30 days. In this case there was delay of 29 days & 10 days in respect of two appeals and the other third appeal had been filed within time. The reason given by the appellant was that there was delay in obtaining legal advice. But this reason has not been found satisfactory by the Commissioner (Appeals). In our view the Commissioner (Appeal's order holding the two appeals as not maintainable and time -barred, is not correct, as the reasons given by the appellant for delay is a valid reason, as they had filed appeals claiming interest for the period of delay against the background of the fact that they had earlier given letters to the Authorities giving up their claim for interest for the period of delay. In view of this, we hold that the impugned order in so far as its rejects two appeals filed after the delay of 29 days and 10 days as time -barred, is not correct.