The CESTAT Kolkata passed an order allowing the appeal of M/s Star Battery in which the Commissioner(Appeal-III) of Central Excise, Kolkata had dismissed the appeal for being filed late. The due date for the appeal fell on Saturday 8th Jan 2011 and as per the General Clauses Act, they filed the appeal on the next working day i.e. 10th January, 2011. Despite this the Commissioner (A) had passed the order dated 18the February, 2013 dismissing the appeal.
By dismissing the appeal without even checking these basic facts, the Commissioner (A) has really created needless work for the Hon'ble Tribunal. In the process between 18th February 2013 and 11th August 2014 (18 months) when the Tribunal quashed the Commissioner's order, the tax payer had to carry the uncertainty of the tax.
From the Tribunal's order it is apparent that the Commissioner hasn't discussed the merits of the case. So we don't know whether the tax payer had a good case or not. But Commissioner's order simply added to the pile of pending appeals before an already stretched Tribunal wasting their time.
If this were to happen after the new mandatory pre-deposit provisions became operative, the tax payer would have had to shell out 10% of the amount to file the appeal. For no fault of their own. Unfair isn't it? Fortunately, the tax amount and penalty in this appeal seems small. But not every demand is!
The questions that arise are:
Isn't the Commissioner (Appeals), whose main role is quasi-judicial i.e. to receive several such appeals and pass judicious orders supposed to know the existence of General Clauses Act? Isn't the Commissioner Appeals supposed to know the last date for filing appeals. This is a simple thing which is expected even of the tax payer, who is not an expert! Are we to conclude the Commissioner (A) was unaware of this when passing an order? Is this just incompetence ? if the aim is to clean-up the huge levels of pending tax litigation, don't we need some knowledge standards in such roles (which will be monitored) to prevent needless pile up of appeals ?