Custom, Excise & Service Tax Tribunal
M/S. Modipon. Ltd vs Cce Ghaziabad on 1 February, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 55218 of 2013
Excise Stay Application No. 55180 of 2013
[Arising out of Order-in-Appeal No. 171/CE/Gbad/2012 dated 28.9.2012 passed by the Commissioner of Central Excise (Appeals), Ghaziabad ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble 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 : No
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
M/s. Modipon. Ltd. Appellants
Vs.
CCE Ghaziabad Respondent
Appearance:
Shri B.K. Singh, Advocate for the Appellants Shri Devender Singh, Jt.CDR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Mr. Sahab Singh, Member (Technical) Date of Hearing/decision : 01.02.2013 ORDER NO . FO/55466 /2013-EX(Br) SO/ 55929/2013-EX(Br) Per Archana Wadhwa (for the Bench):
After hearing both sides and after dispensing with the condition of pre-deposit, we proceed to decide the appeal itself inasmuch as we find that Commissioner (Appeals) has not disposed of the appeals on merits but has rejected the same on the point of condonation of delay as also on the point of Section 35 F of Central Excise Act.
2. At this stage, learned Jt. CDR submits that appeal should not be disposed of and he seeks some time to obtain comments from Commissioner. We find no merits in the prayer of Jt.CDR as Commissioner (Appeals) view is available on record and there is no need for comments either from him or from the Commissionerate as the order is not disposed of on merits.
3. On going through the order of Commissioner (Appeals), we find that he has held that he has no power to condone the delay beyond the period of 30 days in terms of Section 35 (1) of Central Excise Act. We agree with the above view of the learned Commissioner (Appeals) as same is settled position by various pronouncements of various Courts. One such reference can be taken from decision of Honble Supreme Court in the case of Singh Alloys and of decision of Delhi High Court in the case of Raja Mechanical Works.
4. However, the facts in the present case are different. The order in original passed by the Assistant Commissioner was put to challenge before Honble Delhi High Court by way of filing a writ petition in the year 1987. The said writ petition during the intervening period was pending before the Honble High Court and was ultimately disposed of in 2011 giving opportunity to the appellant to file an appeal before appropriate Tribunal. The said appeal was filed within three months from the date of order of Honble High Court. When the appeal came up before the Tribunal it was observed that the appropriate authority is Commissioner (Appeals) and the appeal was dismissed. Thereafter the appeal was filed before Commissioner (Appeals) within the period of 7 days.
5. As is seen from the above that during the intervening period, the appeal / writ petition was either pending before Delhi High Court or before the Tribunal. It is well settled and does not need reliance on any authoritative pronouncement of the law that the period during which, the matter was pending before the wrong forum, is required to be excluded for the purpose of limitation. As such, if the above matter was pending before the Honble High Court and subsequently before the Tribunal, the period is required to be taken out of consideration for the purpose of calculation of limitation period. If that be so, the appeal is required to be held as having been filed within the limitation period before Commissioner (Appeals).
6. We also note that Commissioner (Appeals) has rejected the appeal by not accepting the appellants stand that they have deposited the entire amount of duty confirmed against them, as stated before the Honble Delhi High Court. He has observed as under:
I find that the demand of duty amounting to Rs.1,15,74,706.91 was worked out in view of the impugned order passed by the adjudicating authority deciding the classification issue and appellant were directed to pay the same. I find that on one hand they have sought stay against recovery of the impugned demand while on the other hand in the proforma filled up by them for filing the appeal, the said amount has been claimed as refund without disclosing the appropriate payment particulars of the same. Thus, there appear contradictions in the above discussed facts on record. Moreover, I find that before the Hon'ble High Court of Delhi, the appellant has submitted that they have deposited the entire amount of the tax demanded as is recorded in the Order dated 1st February, 1989, while they have now sought stay against the said recovery. In view of the above discussed contradictions and incomplete disclosures relating to the payment of duty, the stay application filed by the appellant is also liable to be dismissed without further discussion.
7. As is seen from the above, the appellate authority has observed that on one hand they make a submission before Delhi high Court claiming for refund of deposit made towards demand and on the other hand they have filed stay petition for dispensing with the pre deposit. Learned advocate further submits that if an opportunity would have been given to them he would have satisfied the Commissioner (Appeals) as regards the deposit made.
8. In view of the above, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for fresh decision on the point of limitation as also on the point of pre-deposit of dues. Needless to say the appellant would be given an opportunity to put forth their case.
9. Stay petition as also appeal gets disposed of in the above terms.
(Pronounced in the open court)
( Archana Wadhwa ) Member(Judicial)
( Sahab Singh ) Member(Technical)
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