Custom, Excise & Service Tax Tribunal
Vip Industries Ltd vs Commissioner Of Central Excise, ... on 16 September, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. E/S/1630/10 APPEAL No. E/1481/10 (Arising out of Order-in-Appeal No. AGS(84)74/2010 dated 7.5.2010 passed by Commissioner of Central Excise (Appeals), Aurangabad) For approval and signature: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== VIP Industries Ltd. Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent Appearance: Shri Ashish Philip Abraham, Advocate, for appellant Shri Navneet, Authorised Representative (SDR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President and Honble Mr. Sahab Singh, Member (Technical) Date of Hearing: 16.9.2011 Date of Decision: 16.9.2011 ORDER NO Per: S.S. Kang Heard both sides.
2. The applicant filed this application for waiver of pre-deposit of duty, interest and penalty. The Commissioner (Appeals) dismissed the appeal as time-barred. The Commissioner (Appeals) held that there is a delay of one year. The Commissioner (Appeals) has no power to condone such delay as per the provisions of Central Excise Act and hence dismissed the appeal. In these circumstances, we take up the appeal along with the stay application.
3. The contention of the appellant is that the adjudication order was passed by the Assistant Commissioner on 28.4.2009. The appellant filed appeal through courier within the normal period of limitation. Thereafter the Revenue directed them to deposit the amounts as per the adjudication order. The appellant requested the Commissioner (Appeals) to list the appeal and the Commissioner (Appeals) informed the appellant that no appeal has been received in his office. Thereafter the appellant made enquiry and it was found that the courier company had delivered the appeal papers in the office of the Assistant Commissioner of Central Excise and thereafter the same were forwarded to the office of the Commissioner (Appeals), hence there is no delay in filing the appeal. The appellant also relied upon the decisions of the Tribunal in the case of AT & T Communication Services India Pvt. Ltd. Vs. CC, Bangalore reported in 2007 (219) ELT 461 and Nova Petrochemicals Ltd. Vs. CCE, Ahmedabad reported in 2009 (245) ELT 815.
4. The learned SDR appearing on behalf of the Revenue submitted that as per the appellant the appeal was filed through courier and as per the receipt produced by the appellant, the address of consignee was written in the receipt as office of the Customs and Excise and as per the acknowledgement on the receipt, it shows that the same has been received in the office of the Assistant Commissioner of Central Excise and Customs, Division III, Aurangabad. In spite of the fact that the acknowledgement shows that the papers have been received in the office of the Assistant Commissioner, Aurangabad, the appellant had not made any effort to file the appeal before the Commissioner (Appeals) within the period of limitation. In view of this, there is no bona fide on the part of the appellant to show that they had filed the appeal within the normal period of limitation.
5. The contention of the appellant is that the appeal has been filed before the Commissioner (Appeals) within the normal period of limitation. As per the acknowledgement on record, which has been filed by the appellant, papers were forwarded to the office of Customs and Central Excise through courier, Overnite Express, and the same were received in the office of the Assistant Commissioner of Central Excise, Aurangabad. The appellant received this acknowledgment receipt from the courier. In spite of the fact that the receipt specifically shows that the papers were received in the office of the Assistant Commissioner, the appellant had not made any effort to retrieve the papers to file the appeal before the Commissioner (Appeals). Further we find that the courier is the agent of the appellant. The appellant relied upon various decisions of the Tribunal, whereby the Tribunal held that where the appeal papers were delivered in the office of the Commissioner, the office of the Commissioner should have forwarded the papers to the office of the Commissioner (Appeals). The facts of the present case are not parallel to the facts of the decisions relied upon by the appellant. In the present case there is an acknowledgment slip which was received by the appellant showing the delivery of the papers in the office of the Assistant Commissioner, Aurangabad and the appellant had not made any effort to retrieve the papers or to file the appeal before the Commissioner (Appeals) within the normal period. As per the provisions of Section 35 of the Central Excise Act, the appeal is to be filed within a period of 60 days and the Commissioner is empowered to condone the delay of 30 days on showing the sufficient cause for not filing the appeal within the normal period of limitation and the Commissioner (Appeals) has no power to condone the delay which is beyond the period prescribed under the Act. In these circumstances, as the appeal is received in the office of the Commissioner (Appeals) beyond the period condonable by the Commissioner (Appeals), we find no merit in the appeal and the same is dismissed. The stay petition is also dismissed.
(Dictated in Court) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President tvu 1 5