Custom, Excise & Service Tax Tribunal
M/S. Taher Ali Industries & Projects ... vs The Commissioner Of Customs, Central ... on 5 May, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Misc., Stay & Appeal No: E/Misc./62/2008 & E/Stay/93/2008 in E/135/2008 (Arising out of Order-in-Appeal No: 15/2008(H-III)CE dated 25.02.2008 passed by the Commissioner of Customs, Excise & Service Tax (Appeals-I & III), Hyderabad) 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? Yes 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s. Taher Ali Industries & Projects Private Limited Appellant Vs. The Commissioner of Customs, Central Excise & Service Tax (Appeals-I & III) Hyderabad- Respondent
Appearance Shri Sayed Tausif Ali, Sr. Manager(Taxation), for the appellant Shri K. Sambi Reddi, Authorised Representative (JDR), for the Revenue CORAM DR. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) SHRI T. K. JAYARAMAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 01.05.2008 Date of decision:05.05.2008 MISC. ORDER No. ___________________ 2008 STAY ORDER No. ___________________ 2008 FINAL ORDER No._______________________2008 Per Shri T. K. Jayaraman As the issue lies in a short compass, the appeal itself is taken up for disposal along with the misc. application for early hearing and the stay application. This appeal has been filed against the OIA No. 15/2008(H-III)CE dated 25.02.2008 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals-I & III), Hyderabad are taken up for disposal.
2. Shri Sayed Tausif Ali, Senior Manager (Taxation), represented the appellants and Shri K. Sambi Reddi, the learned JDR, represented the Revenue.
3. We heard both sides. Shri Tausif Ali stated that the Joint Commissioner of Central Excise (Hyderabad-III) passed an Order-in-Original No. 06/2006 dated 31.01.2006 demanding duty to the tune of Rs. 8,79,633/- under section 11A of the Central Excise Act, 1944 by invoking the longer period. Equal penalty under section 11AC was imposed. Interest under Section 11AB was demanded. Further, a penalty of Rs. 1,00,000/- under Rule 25 of Central Excise Rules, 2002 was also imposed. He stated that the appellant filed an appeal against the said Order-in-Original. The appeal has been acknowledged by the inward clerk under the stamp of Office of the Commissioner of Customs & Central Excise, Hyderabad-III. The appeal was filed along with application for waiver of pre-deposit and stay of demand under section 35F of the Central Excise Act, 1944. Subsequently, when the matter was orally pursued before the office of the Commissioner (Appeals), it was informed that it will take its own time and the appellants were instructed to wait till the hearing date is informed. Therefore, the appellants were under bonafide impression that the appeal is pending before the Commissioner (Appeals). They were waiting for the intimation for personal hearing. However, the learned Assistant Commissioner, Hyderabad G Division, without taking note of the above fact has issued a notice for recovery u/s. 11A of the Central Excise Act, 1944. The appellant filed reply stating that since the appeal is filed along with the stay petition before the Appellate Authority, no recovery proceedings can be initiated till the disposal of the stay petition by the Appellate Authority. In spite of the above request, the Assistant Commissioner passed an Order of Detention under section 11 of the Central Excise Act, 1944 even without providing an opportunity of being heard to the appellant. Against the said Order of Detention, an appeal was filed before the Commissioner (Appeals), Hyderabad-III Commissionerate. The learned Commissioner (Appeals) held that the appeal cannot be filed before him against the Detention memo. He stated that the Commissioner (Appeals), instead of getting the appeal paper books transferred from the Office of the Commissioner, Hyderabad-III Commissionerate, has disposed of the case without application of mind.
4. The learned JDR, Shri K. Sambi Reddi, stated that the appellant ought to have filed the appeal against the Joint Commissioners order in the right forum. Instead of doing that, the appellant had filed appeal only against the Detention Order issued by the Joint Commissioner. He stated that the impugned order is legal and proper.
5. On a very careful consideration of the issue and also on going through the records, we find that the appellant indeed filed an appeal against the Order-in-Original dated 31.01.2006 along with the stay application. We find from records that there is a seal of the O/o. Commissioner of Customs & Central Excise Hyderabad-III Commissionerate, Hyderabad with date 03.05.2006 for having received the appeal. However, the appeal has been filed in the wrong forum. The concerned authority who received the appeal papers from the appellant, ought to have guided the appellant properly. It is common knowledge that such mistakes normally happen. Alternatively, this appeal should have been transferred to the Commissioner (Appeals). When there is so much publicity with regard to the Citizens Charter and the Government considering the Central Excise assessees as partners in progress, it is expected that the Commissionerate followed a Tax Payer Friendly approach. In any case, atleast, the authority which received the appeal paper could have returned the same to the appellant. None of the above things had been done. In these circumstances, the initiation of recovery proceedings while the appeal and stay application are pending is not at all justified. In our view, the Departmental authorities should have transferred the appeal papers to the Commissioner (Appeals). In any case, in the interest of justice, we remand the case to the Commissioner (Appeals) who would examine the appeal filed by the appellant in the wrong forum. The Commissioner of Customs & Central Excise, Hyderabad-III Commissionerate, who received the appeal on 03.05.2006, should transfer the papers to the Commissioner (Appeals) for necessary action. In view of the peculiar circumstances of the case, we are deciding the appeal itself by way of remand. In these circumstances, the early hearing application is infructuous. Thus, the appeal, stay application and misc. application are disposed of in the above manner.
(Pronounced in open Court on 05th May, 2008) (T.K. JAYARAMAN) Member(T) (S. L. PEERAN) Member(J) /pr/