Custom, Excise & Service Tax Tribunal
The Board Of Trustees Of The Port Of ... vs Cc (General) Mumbai on 12 April, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
Application No. C/S/1842/09 - Mum
In Appeal No. C/1130/09 - Mum
(Arising out of Order-in-Appeal No. 245/2009/MCH/AC/MCD/2009 dated 07.09.2009 passed by the Commissioner of Customs (Appeals), Mumbai I).
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
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?
The Board of Trustees of the Port of Mumbai
:
Appellants
Versus
CC (General) Mumbai
Respondents
Appearance Shri Yogesh Patki, Advocate for Appellants Shri N.A. Sayyad, JDR for Respondents CORAM:
Honble Shri. Ashok Jindal, Member (Judicial) Date of Hearing : 12.04.10 Date of Decision : 12.04.10 ORDER NO.
Per : Ashok Jindal After hearing the party I find that the appeal can be disposed of at this stage. Accordingly, after granting waiver of pre-deposit, I take up the appeal for final disposal.
2. The appellant filed this appeal against the order of the Commissioner (Appeals) wherein he dismissed the appeal of the appellant holding that the appeal has been filed beyond the period of limitation i.e. 60 days. The appellant herein are Board of Trustees of the Port of Mumbai. The learned Advocate appearing for the appellant submits that the demand has been confirmed under the Customs Act to recover duty on pilfered goods whilst in their custody. He further submitted that the appellant has challenged this demand by way of Writ Petition before the Honble High Court of Bombay in Writ Petition No. 1278 of 2003 wherein the Honble High Court of Bombay had granted them stay on 9.6.2003. Finally, the Writ Petition was disposed of by the Honble High Court on 28th July 09 in favour of the appellant. He further submitted that there was a delay of 26 days in filing the appeal before the Commissioner (Appeals) which was well within the jurisdiction of the Commissioner (Appeals) to condone the delay but the Commissioner (Appeals) did not exercise his discretion and rejected the appeal holding it time barred. In view of the above, the appellant submitted that the appeal may be remanded back to the Commissioner (Appeals), after condoning the delay, to pass an appropriate order on merits in the light of the Judgement of the Honble High Court of Bombay on the issue.
3. After hearing the arguments, I find that in this case there is a delay of 26 days in filing the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) was having his jurisdiction to condone the delay but he failed to opt the same and dismissed the appeal. I find that on merits the appellants are having good case. Accordingly, after condoning the delay in filing the appeal before the Commissioner (Appeals), matter may be heard on merits by the Commissioner (Appeals). With this observation, the matter is remanded back to the Commissioner (Appeals) for passing an order on merits after giving an opportunity of hearing to the appellant. Stay petition is also disposed of in the above terms.
(Pronounced in Court) (Ashok Jindal) Member (Judicial) nsk 3