Important Point
If an appeal is not time barred and was rejected wrongly as barred by limitation, it has to be treated as pending.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the order passed by a Division Bench of the Bombay High Court dismissing the Writ Petition filed by the appellant.

3.The background facts in a nutshell are as follows :

“The appellant is a composite Textile Mill engaged in manufacture of cotton yarn, man-made yarn, cotton fabrics and man-made fabrics as well as the processing amongst other activities. For the period from October, 1994 to February, 1997, the appellant was served with 14 Show Cause Notices for recovery of differential duty of approximately Rs.50 lakhs. The said show cause notices were adjudicated by the Assistant Commissioner of Central Excise, Mumbai-II vide Order-in-original No.781/398/97 to 794/411/97 dated 12th November, 1997, confirming the demands covered thereunder along with interest. The Assistant Commissioner of Central Excise also imposed penalty of Rs.5,000/-. There being incorrect computation, he directed the Range Superintendent to verify figures and work out the fresh demand. The Range Superintendent re-worked the duty amount of Rs.9,40,753/- and issued a demand notice on 18th May, 1998 requiring the appellant to pay the said amount along with penalty of Rs.5,000/-.

Dissatisfied with the order-in-original dated 12th November, 1997 passed by the Assistant Commissioner of Central Excise and the order of Range Superintendent dated 18th May, 1998, the appellant preferred appeal before the Commissioner of Central Excise (Appeals) on 2nd September, 1998 along with stay application. The Commissioner of Central Excise (Appeals) vide order dated 28th December, 1998 asked the appellant to deposit the entire amount of duty and penalty within four weeks from the date of the order.

Finance (No.2) Act, 1998, came out with Scheme known as “Kar Vivad Samadhan Scheme, 1998” (for short, ‘KVSS’). The said scheme provided for settling the tax arrear by paying 50% of the disputed tax arrear. Under the KVSS, the Commissioner of Central Excise was appointed as Designated Authority. The scheme was operative from 1st September, 1998 to 31st January, 1999. The appellant filed declaration under Section 89 of the Finance Act, 1998 before the Commissioner of Central Excise on 31st December, 1998.

The aforesaid declaration filed by the appellant came to be rejected by the Designated Authority vide his order dated 25th February, 1999 on the ground that appeal was filed by the appellant before the Commissioner of Central Excise (Appeals) after the limitation for filing the appeal had already expired and that delay in filing the appeal was not condoned by the Commissioner of Central Excise (Appeals).

Aggrieved by the order in appeal dated 25 February, 1999, the appellant preferred appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench, Mumbai (for short, ‘the Tribunal’).

4.The Tribunal vide its order dated 29th November, 1999 held that the appeal preferred by the appellant before the Commissioner (Appeals) was within time and, accordingly, set aside the order of the Commissioner (Appeals) and remanded the matter back to him for fresh disposal in accordance with law.

5.On remand, the Commissioner (Appeals) vide order dated 29th June, 2001 upheld the order-in-original dated 12th November, 1997.

6.After the Tribunal passed the order on 29th November, 1999 holding that the appeal preferred by the appellant before the Commissioner (Appeals) was within time, the appellant approached the Designated Authority vide its letter dated 24th April, 2001 for reconsideration of the earlier order dated 25th February, 1999 and give the appellant the benefit of KVSS in the matter of the application filed under Section 89 of the KVSS on 28th January, 1999.

7.The Superintendent of Central Excise, Range II on 18th January, 2002 informed the appellant that the Application under Section 89 of the KVSS was re-examined by the Chief Commissioner’s office, Mumbai and since the KVSS no longer exists,