Tvl. Fe Nerve Building vs. The Assistant Commissioner

Facts

The petitioner, Tvl.Fe. Nerve Building, represented by its Proprietor M.Balamurugan, filed a writ petition challenging an Order in Original (DIN.20221259XN030000B32E, File No.GEXCOM/ADJN/ST/1971/2022-CGST-DIV-TNJ) dated 30.12.2022, passed by the Assistant Commissioner of GST & Central Excise, Thanjavur Division. This order confirmed a demand proposed in a show cause notice dated 18.10.2021. The petitioner contended that the order was received during the COVID-19 lockdown period, and due to an oversight by their in-charge, they were unaware of it until a reminder was sent on 24.06.2024. The respondents argued that the writ petition should be dismissed based on Supreme Court decisions regarding the delay in filing appeals.

Held

The Court found the petitioner's explanation for the delay to be reasonable, stating that an assessee would typically not remain silent if an adverse order was passed. The Court accepted the petitioner's explanation that the order was received during the COVID-19 lockdown and that there was an internal lapse in reporting its receipt, leading to their unawareness until a reminder was issued. While acknowledging the delay and the respondents' reliance on Supreme Court precedents regarding time-barred appeals, the Court chose not to interfere with the detailed Order in Original itself. Instead, it granted liberty to the petitioner to file a statutory appeal before the Commissioner of Customs and Central Excise (Appeals). The Commissioner was directed to entertain the appeal and dispose of it on merits without reference to the limitation period. The petitioner was given 30 days from the receipt of the order to file the appeal and comply with the mandatory pre-deposit requirements under Section 35F of the Central Excise Act, 1944.

Key Issues

1. Whether the petitioner's explanation for the delay in challenging the impugned order, which was received during the COVID-19 lockdown and allegedly not brought to their attention promptly, is reasonable, and if so, should the Court entertain the writ petition despite the delay? This issue turns on the principles of natural justice and the Court's power under Article 226 of the Constitution of India. Petitioner's argument: The petitioner argued that the delay was unintentional and due to circumstances beyond their control, specifically the COVID-19 lockdown and an internal communication lapse. They claimed they were unaware of the order until a reminder was received, and therefore, their challenge should be considered. Respondents' argument: The respondents contended that the writ petition is liable to be dismissed, citing the Supreme Court's decisions in Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited and M/S. Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others, which emphasize the importance of timely appeals and the consequences of delay.