Custom, Excise & Service Tax Tribunal
M/S Interscape vs C.C.E. & S.T. Ghaziabad on 29 June, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. E/54788/2014 -Ex[SM]
[Arising out of Order-In-Appeal No. 43/SM/CE/D-II/14 dated: 30.07.2014 passed by CCE Delhi-II]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
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 Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s Interscape ...Appellant
Vs.
C.C.E. & S.T. Ghaziabad Respondent
Appearance:
Mr. Rajeev Waglay, Advocate for the Appellants Mr. Devinder Singh, DR for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing.29.06.2015 FINAL ORDER NO. 53078 /2015 Per S. K. Mohanty (for the Bench):
This appeal is directed against the impugned order dated 30.07.2014 passed by Commissioner (Appeals), Central Excise, Delhi-II, wherein the appeal of the appellant was dismissed on the sole ground that the appeal was filed beyond the period of three months from the date of receipt of the adjudication order, for which the Commissioner (Appeals) is not empowered to condone the delay in terms of the Central Excise Act, 1944.
2. The Ld. Advocate Sh. Rajeev Waglay, appearing for the appellant, submits that the order-in-original dated 14.03.2012 passed by the Deputy Commissioner of Central Excise, was received by the appellant on 19.3.2012. Appeal papers against the said order were sent through registered post (A.D.) on 28.03.2012 to the office of the Commissioner (Appeals), in the address indicated in the preamble to the Adjudication order. The Ld. Advocate further submits that since the Range Superintendent vide letter dated 07.11.2012 insisted for payment of the adjudged dues confirmed in the Adjudication order dated 14.03.2012, as an abundant precaution, the appellant filed another set of appeal before the Commissioner (Appeals) on 27.12.2012. Thus, according to the Ld. Advocate, the appeal papers sent initially through RPAD on 20.03.2012 should be considered as the date of filing of appeal, and as such, there is no delay in filing the appeal. To justify his above stand, the Ld. Advocate relied on the following judgments.
* Collector of Customs, Madras vs Union Carbide India Ltd., Calcutta [1988 (38) ELT 263 (A.P.)] * Ruby Rubber Works Limited, Kerala vs Asstt. Collector of C.Ex., I.D.O. Kottayam & Others [1980 (6) ELT 615 (Kerala)] * Abirami Soap Works vs Commr. of C. Ex., Pudhucehrry [2009 (247) ELT 378 (Tri. Chennai)]
3. Per contra, the Ld. DR, Sh. Devinder Singh appearing for the Respondent reiterates the findings recorded in the impugned order and also submits that there is no evidence regarding receipt of the appeal papers in the office of the Commissioner (Appeals). Hence, according to the Ld. DR, the appeal has not been filed by the appellant within the stipulated time frame prescribed in Section 35 of the Central Excise Act, 1944. He also relies on the judgment of Honble Supreme Court delivered in the case of Singh Enterprises vs Commissioner of C. Ex., Jamshedpur [2008(221) ELT 163 (SC)] to justify his stand that the Commissioner (Appeals) is not empowered to condone the delay beyond the period of thirty days from the date of limitation period for filing the appeal.
4. Heard the Ld. Counsel for both sides and perused the records.
5. I find from the available records that the appeal papers were sent through RPAD on 28.03.2012, which is the recognized mode of communication as per the Central Excise statute. Further, the AD slip submitted by the appellant, evidencing dispatch of the appeal papers to the office of the Commissioner (Appeals) has not been questioned either by the first appellate authority on the Ld. DR for the respondent that the same is false or fabricated. Since the genuineness of the AD Slip has not been doubted and especially in view of the fact that the said slip is a part of the appeal papers available in Tribunals file, I have no hesitation in accepting the fact that the appeal was filed by the appellant within the stipulated time frame prescribed in the statute.
6. In view of above, I am of the opinion that there is no delay in filing appeal by the appellant in the office of the Commissioner (Appeals), Central Excise; Delhi. The reliance placed by the Ld. Jt. CDR in the case of Singh Enterprises (supra) is not applicable to the facts of the present case, inasmuch as, the issue decided in the said case was with regard to filing of appeal before the Commissioner (Appeals) beyond the period of 90 days from the date of communication of the adjudication order for which the Commissioner (Appeals) is not empowered to condone the delay. On the other hand, I find support from the decisions cited by the Ld. Advocate for the appellant.
7. Therefore, considering the above, I am of the view that the impugned order is not maintainable and thus the same is set aside and the appeal is allowed by way of remand to the Commissioner (Appeals), who shall decide the appeal on merits after affording due opportunity of personal hearing to the appellant. The appeal is disposed of in above terms.
(Dictated and pronounced in open court) (S.K. Mohanty) Member(Judicial) Neha Page | 4