Custom, Excise & Service Tax Tribunal
M/S. Sterlite Industries (India) Ltd vs Commissioner Of Central Excise, ... on 20 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
E/S/40040/2013 and E/40052/2013
[Arising out of Order-in-Appeal No.TNL-CEX-APP-048-12, dated 28.09.2012 passed by the Commissioner of Central Excise (Appeals), Madurai]
1. Whether Press Reporters may be allowed to see 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 the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s. Sterlite Industries (India) Ltd.
Appellant
Versus
Commissioner of Central Excise, Tirunelveli
Respondent
Appearance:
Shri G. Krishnamurthy, Adv. Shri P. Arul, Supdt.-AR For the Appellant For the Respondent CORAM:
Honble Shri P.K. Das, Judicial Member Date of hearing : 20.09.2013 Date of decision : 20.09.2013 Final Order No.40421/2013 Having heard the stay petition at length, I find it appropriate to take up the appeal itself. Accordingly, after disposing of the stay petition, appeal is taken up for hearing.
2. Heard both sides and perused the records.
3. The Commissioner (Appeals) rejected the appeal on the ground of limitation as the appeal was filed beyond the statutory period. There is no dispute that the applicant received the adjudication order on 07.01.2011 and filed the Writ Petition on 05.03.2011. It appears from the impugned order that the Commissioner (Appeals) proceeded on the basis of the Writ Petition (MD) Nos.8123 & 8135 of 2010 and MP (MD) Nos.1,2, & 3/2010, which was disposed of on 29.04.2011 and a certificate copy was issued on 09.06.2011. It is seen from the order of the Honble High Court that the said Writ Petition was filed against the notice dated 08.06.2010, directed the petitioner to reverse the Cenvat credit availed by them to an extent of Rs.315,91,42,459/- along with interest.
4. The learned Counsel for the appellant submits that they have also filed another Writ Petition (MD) No.2784 of 2011. It is seen from the order dated 19.10.2011 passed by the Honble High Court in the said Writ Petition No.2784 of 2011 that the appellant challenged Order-in-Original No.06/2010, dated 23.10.2010 passed by the Deputy Commissioner of Central Excise, Tuticorin, which is the subject-matter in the present appeal before the Tribunal. He submits that the Commissioner (Appeals) erroneously proceeded on the basis of other Writ Petition. It is contended that after taking into account the present Writ petition No.2784 of 2011, there is a delay of 23 days only and the same can be condoned by the Commissioner (Appeals), which is well within his jurisdiction.
5. After considering the submissions of both sides, I find that it is appropriate that the matter should be examined by the Commissioner (Appeals), the COD application filed by the appellant. Accordingly, I set aside the impugned order and the matter is remitted back to Commissioner (Appeals) to decide afresh the application of condonation of delay in filing the appeal. Needless to say that the Commissioner (Appeals) should provide opportunity of hearing to the appellant before passing the order. The appeal is allowed by way of remand and stay application also gets disposed of. (Dictated and pronounced in open court) (P.K. DAS) JUDICIAL MEMBER ksr DRAFT Remarks I II III Date of dictation 20.09.2013 Draft Order - Date of typing 24.09.2013 Fair Order Typing 26.09.2013 Date of numbering and date of dispatch 5 E/S/40040/2013 and E/40052/2013