Custom, Excise & Service Tax Tribunal
M/S Kusum Ingots & Alloys Ltd vs Cce, Indore on 15 April, 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. III DATE OF HEARING : 15/04/2013. DATE OF DECISION : 15/04/2013. Excise COD Application No. 208 of 2012 with Stay Application No. 1368 of 2012 in Appeal No. 1102 of 2012 [Arising out of the Order-in-Appeal No. 444-CE/BPL/1998 dated 22/07/1998 passed by The Commissioner (Appeals), Customs & Central Excise, Bhopal.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) 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 Kusum Ingots & Alloys Ltd. Appellant Versus CCE, Indore Respondent
Appearance Shri Debesh Panda, Advocate for the appellant.
Mrs. Ranjana Jha, Authorized Representative (Jt. CDR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 56133/2013 Dated : 15/04/2013 Per. Archana Wadhwa :-
After hearing both the sides for a considerable length of time, in support of the COD application, we find that the impugned order was passed by Commissioner (appeals) on 22/7/98, when their appeal was dismissed for non-compliance with the stay order passed by Commissioner (Appeals). However, the appellant was not heard before dismissing the appeal. The present appeal against the said order stand filed by the appellant on 23/4/12 that is after a gap of 14 years. As per the appellant, they did not receive the said order and it is only subsequently when the Revenue approached them for recovery of the dues that they came to know about passing of the said order and approached the Revenue for procuring a copy of the same. The said impugned order was served upon the appellant on 05/3/12 and appeal was filed on 23/4/12.
2. On being questioned as to which address was given in the appeal memo filed before Commissioner (Appeals), for the purpose of making correspondence, learned advocate has not been able to show us the said address. His only contention is that the appeal was filed before Commissioner (Appeals) in December, 1997 and on account of Honble Bombay High Court order appointing a receiver, their factory was not working and the possession has been taken over by the court receiver. However, we find no justification in the above-mentioned reason in as much as from the list of dates and events, produced on record by the appellant as per directions given to him on the last date of hearing, we note that the said High Courts decision was on 10/09/1997, whereas appeal was filed before Commissioner (Appeals) on 02/12/1997. As such, when the appeal was filed before Commissioner (Appeals), the appellant was aware of Honble Bombay High Courts order and the appointment of the receiver and taking over of the factory by the receiver. In that case, the correct correspondence address was required to be given by the appellant in their EA-2 form of appeal filed before him. The appellants have not shown us as to what was the address given to Commissioner (Appeals) for making the correspondence. In the absence of the same, it has to be held that the order-in-appeal passed by Commissioner (Appeals) was sent to the address which the appellant had themselves given in their memo of appeal. At this stage, we also take note of a communication received from the Commissioner to the CDRs office which shows that the order-in-appeal was dispatched under dispatch No. 2705-2708 dated 23/7/98. We have also seen the comments offered by the Commissioner wherein it stands clearly mentioned that the impugned order was sent under Registered/A.D. and was not received back from the postal authorities as undelivered. As such, the appellant cannot take the benefit of its own wrong in not mentioning the correct address in their EA-2 form filed before Commissioner (Appeals) and then not making any inquiries from the office of the Commissioner (Appeals) for a period of more than 12 years so as to know about the status of their appeal. This only reflects upon the casual attitude of the appellant for which no status of reasonable cause can be given to them. At this stage, learned advocate submits that in between they have been writing letters to the office of Commissioner (Appeals) to know about their status of appeal. However, we note that the appellant, never intimated the office of Commissioner (Appeals) about their new address. Learned advocates contention that the subsequent show cause notices were issued to the appellant at their knew address and as such it has to be presumed that the Revenue new about the correct address does not find favour with us in as much as the show cause notice was issued by the Commissioner at the original adjudicating levels and the appeals are disposed of by different offices of Commissioner (Appeals). As such, the appellant was duty bound to communicate their correct address to the office of Commissioner (Appeals) and the fact that the original office of Commissioner, which is admittedly different from the office of the appellate authority cannot be held to be the ground so as to fix the responsibility on the office of Commissioner (Appeals).
3. COD application is accordingly rejected. Consequently stay petition as also appeal gets rejected as barred by limitation.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
??
??
??
4