Custom, Excise & Service Tax Tribunal
M/S Gautam Enterprises vs Cce, Ghaziabad on 15 February, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Excise Appeal No. 3674 of 2012 (SM) [Arising out of the Order-in-Appeal No. 150/CE/GZB/2012 dated 25/08/2012 passed by The Commissioner of Central Excise (Appeals), Ghaziabad.] For Approval and signature : Honble Shri Rakesh Kumar, 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 would 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 : Department Authorities? M/s Gautam Enterprises Appellant Versus CCE, Ghaziabad Respondent
Appearance Ms. Seema Jain, Advocate for the appellant.
Shri B.B. Sharma, Authorized Representative (DR) - for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 15/02/2013.
Final Order No. 55606/2013 Dated : 15/02/2013 Per. Rakesh Kumar :-
In this case, the Jurisdictional Deputy Commissioner, vide order-in-original dated 30th March 2012 confirmed duty demand of Rs. 3,59,309/- against the appellant alongwith interest and imposed penalty of equal amount on them under Section 11AC of the Central Excise Act. This order was received by the appellant on 14/4/12. However, since the Deputy Commissioners order mentioned the date of hearing as 11/4/12, the appellant after receipt of the order, sought clarification on this point from the Deputy Commissioner vide their letter dated 02/05/2012 pointing out this discrepancy. In response to this letter, the department issued a corrigendum dated 14th May 2012 stating that in the 15th para of the order-in-original dated 30th March 2012, the date 11/4/12 should be read as 11/3/12 instead of 11/4/12, as in third line of 16th para of the order-in-original. After receipt of this corrigendum, the appellant filed appeal before the Commissioner (Appeals) on 29/6/12. The Commissioner (Appeals) without going into the merits of this case refused to condone the delay of 16 days and dismissed the appeal. Against this order of the Commissioner (Appeals), this appeal had been filed.
2. Heard both the sides.
3. Ms. Seema Jain, Advocate, the learned Counsel for the appellant, pleaded that the appeal had been filed on 26/6/12 and, as such, there was delay of 13 days not 16 days, that delay was due to genuine reason, as there was factual mistake in the order-in-original passed by the Deputy Commissioner regarding the date of hearing, that in view of this factual mistake being pointed out by the appellant, the department issued a corrigendum dated 14th May 2012, that it is only after receipt of this corrigendum that the appellant filed the appeal, that the only reason for delay in filing of appeal was the discrepancy in the date of hearing in the order passed by the Deputy Commissioner, that since there was genuine ground for condoning the delay and the Commissioner (Appeals) has powers to condone the delay upto 30 days in filing of appeal the impugned order refusing to condone the delay and dismissing the appeal as time based is incorrect. She, however, stated that there is no objection to remand of matter to CCE (Appeals) for decision on merits.
4. Shri B.B. Sharma, the learned Departmental Representative, defended the impugned order by reiterating the findings of the Commissioner (Appeals) in it.
5. I have considered the submissions from both the sides and perused the records.
6. I find that from the appellants correspondence with the department it is clear that there was a factual mistake regarding the date of hearing in the order passed by the Deputy Commissioner, as while the date of order was 30th March 2012, the date of hearing as recorded in the order was 11/4/12. It is only after pointing out of discrepancy by the appellant that the department issued a corrigendum correcting the date of hearing as 11/3/12 in para 15 of the order. The appellant filed appeal before the Commissioner (Appeals) only after the issue of the corrigendum dated 14th May 2012. In my view, therefore, the reason for 16 days delay in filing of the appeal is genuine and the same being within 30 days should have been condoned by the Commissioner (Appeals). I, therefore, hold that the Commissioner (Appeals) order refusing condoning the delay is not correct. The impugned order, therefore, is set aside and the matter is remanded to Commissioner (Appeals) for decision on merits.
(Pronounced in the open court.) (Rakesh Kumar) Member (Technical) PK ??
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