Murugan.K vs. The Commissioner Of Central Excise (Appeals)

Facts

The petitioner, K. Murugan, an ex-serviceman and licensed contractor, filed a writ petition seeking a Mandamus to direct the Commissioner of Central Excise (Appeals) to accept his appeal against an order passed by the Assistant Commissioner of Central GST and Excise. The order-in-original was dated 16.12.2021. The petitioner claimed he was not served a copy of this order and only became aware of it on 02.06.2023 when his bank account was frozen. He subsequently filed an appeal along with a delay condonation petition. The respondents contended that the order was served, producing an acknowledgment signed by the petitioner's wife. The petitioner stated there was no communication with his wife, hence he could not file the appeal in time. The delay amounted to 455 days.

Held

The Court allowed the writ petition, directing the Commissioner of Central Excise (Appeals) to take the petitioner's appeal on file and consider it on merits. The Court directed the petitioner to pay Rs. 5,000/- to the respondents to condone the delay. The petitioner was given four weeks from the date of receipt of the order to file the appeal, and the respondents were directed to consider the appeal within four months thereafter. The reasoning was based on the facts and circumstances of the case, including the petitioner's claim of non-service of the order and reliance on the Gujarat High Court's decision in M/s. Manjeet Cotton Private Limited, which allowed an appeal to be taken on file despite a delay when the party wished to challenge an assessment. The Court did not expressly leave any issue undecided.

Key Issues

1. Whether the petitioner's appeal against the order dated 16.12.2021 passed by the Assistant Commissioner of Central GST and Excise should be taken on file by the Commissioner of Central Excise (Appeals) without reference to the delay, by condoning the same? Petitioner's arguments: The petitioner argued that the order-in-original was not served upon him, and he only came to know about it when his bank account was frozen. He contended that due to the non-service of the order, he was unable to file his appeal within the prescribed time limit. He relied on the Gujarat High Court judgment in M/s. Manjeet Cotton Private Limited Vs Commissioner of State Tax. Respondents' arguments: The respondents denied non-service of the order and produced an acknowledgment signed by the petitioner's wife. They highlighted the significant delay of 455 days in filing the appeal.