Custom, Excise & Service Tax Tribunal
Bharat Petroleum Corporation Ltd vs Commissioner Of Central Excise, Nasik on 16 July, 2014
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. E/26/2005-Mum. (Arising out of Order-in-Appeal No. CEX.XI/JMJ/422/916/NSK/APL/2004 dt. 27.10.2004 passed by the Commissioner of Customs & Central Excise (Appeals), Nashik) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) ============================================================
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?
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Bharat Petroleum Corporation Ltd.
:
Appellant
VS
Commissioner of Central Excise, Nasik.
:
Respondent
Appearance
Mrs. Padmavati Patil, Advocate for Appellant
Shri V..K. Agarwal, Additional Commissioner (A.R) for respondent
CORAM:
Mr. Ashok Jindal, Member (Judicial)
Mr. P.S. Pruthi, Member (Technical)
Date of hearing : 16/07/2014
Date of decision : 16/07/2014
ORDER NO.
Per : Ashok Jindal
The appellant is in appeal against the impugned order wherein their appeal has been dismissed by the Commissioner (Appeals) as time barred.
2. The brief facts of the case are that the appellant received the adjudication order dt. 18.11.2000 on 23.1.2001. Against the said order they were required to file an appeal before the Ld. Commissioner (Appeals) on or before 22.4.2001. On 19.4.2001 inadvertently, the appeal papers were submitted in the office of the Commissioner of Central Excise Division-A, Mumbai-I whereas it was to be submitted in the office of Commissioner (Appeals) situated in the same building on 1st Floor. Thereafter on 1.9.2004 the appellant received letter from Deputy Commissioner, Nashik-III Division to pay the dues confirmed against them vide order-in-original dt. 18.11.2000. Thereafter on 8.9.2004 the appellant submits the appeal papers in the office of Ld. Commissioner (Appeals) along with an acknowledgement dt. 19.4.2001 and requested to consider their appeal paper. But the appeal was dismissed by the Ld. Commissioner (Appeals) as time barred as same was filed beyond the prescribed period as per Section 35(1) of Central Excise 1944. Aggrieved from the said order, the appellant is before us.
3. The Ld. Counsel for the appellant submits that although they were required to file appeal papers in the office of the Commissioner (Appeals), who was situated in the same building on 1st floor but they filed appeal before Commissioner of Central Excise Division A, Mumbai I and same has been received in their office on 19.4.2001. Therefore, the said date be treated as the date of filing of the appeal in the light of the decisions of H.M.T. Ltd. Vs. Commissioner of Customs, Chennai 2009 (239) E.L.T.239 (Kar.), Nova Petrochemicals Ltd. Vs. Commissioner of C. Ex., Ahmedabad 2009 (245) 815 (Tri. Ahmd.), Maruti Udyog Ltd. Vs. Commissioner of Customs, Kandla 2009 (244) ELT 66 (Tri.Ahmd.), Goa Tourism Development Corpn. Ltd. Vs. Commr. Of Cus. & C. Ex. Goa 2009 (239) ELT 343 (Tri.-Mumbai), Allana Cold Storage Ltd. Vs. Commissioner of Central Excise, Mumbai 2004 (175) E.L.T. 621 (Tri.-Mumbai), N. Balakrishnan Vs. M. Krishnamurthy 2008 (228) E.L.T. 162 (S.C.).
4. On the other hand, the Ld. A.R. strongly opposed the contention of the Ld. Counsel and submits that the similar issue come up before this Tribunal in the case of VIP Industries Ltd. Vs. Commissioner of Central Excise, Aurangabad reported in 2012 (280) E.L.T. 126 (Tri.-Mumbai), wherein this Tribunal held that the order of Ld. Commissioner (Appeals) is correct holding that appeal is filed beyond the period of limitation.
5. Heard both sides and considered the submissions.
6. In this case the admitted facts are that the appellant received the order-in-original on 23.1.2001 and they filed the appeal papers in the office of the Commissioner of Central Excise Division-A Mumbai I on 19.4.2001. The Ld. Counsel for the appellant has produced the acknowledgement receipt which shows that the appeal papers have been received by dispatch clerk in the office of Commissioner of Central Excise, Division-A , Mumbai-I on 19.4.2001. The Ld. A.R. relied on the decision of VIP Industries Ltd. (supra) in that case the appeal papers were sent through courier and same were received in the office of the Assistant Commissioner of Central Excise instead of in the office of Commissioner of Central Excise(Appeals). whereas in the present case, on the face of the paper book it is mentioned that it is to be delivered in the office of Commissioner (Appeals). If the person who received the papers in the office of Commissioner of Central Excise Division-A, Mumbai I have pointed out that these papers are to be delivered in the office of Commissioner (Appeals), the appellant would have taken care of that, and would have delivered the papers accordingly. Therefore this facts are not similar in the case of VIP Industries (Supra). At this stage, the Ld. Counsel who contested the case before this Tribunal in the case of VIP Industries (Supra) stated that the order of this Tribunal in the case of VIP Industries (supra) had been appealed before the Honble High Court of Bombay and the Honble High Court of Bombay had set aside the order and remanded the matter back to the Commissioner (Appeals) for consideration of the appeal on merit. In these circumstances, the decision of VIP Industries Ltd. (Supra) is not a good law.
7. As discussed above, the appeal papers were delivered by the appellant in time although in the office of the Commissioner of Central Excise, Division A, Mumbai-I same be treated as the date filing the appeal before Commissioner (Appeals). Therefore, we hold that the appeal filed before the Commissioner (Appeals) is within time. In these circumstances, we remand the matter back to the Ld. Commissioner (Appeals) for consideration of the issue on merits. Appeal is disposed of in the above terms.
(Dictated in court) (P. S. Pruthi) Member (Technical) (Ashok Jindal) Member (Judicial) Sm ??
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