Custom, Excise & Service Tax Tribunal
Commr. Of Customs (Port), Kolkata vs M/S Satnam International on 28 June, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
SP-903/09
& Cus. Appeal No.572/09
Arising out of O/A No.Kol/Cus/CKP/576/2009 dated 22.9.2009 passed by Commr. of Customs (Appeals), Kolkata.
For approval and signature:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Customs (Port), Kolkata
APPELLANT(S)
VERSUS
M/s Satnam International
RESPONDENT (S)
APPEARANCE Shri M. K. Sil, Spl. Counsel for the Department Shri R. N. Bandapadhyay, Advocate for the Respondent (s) CORAM:
SHRI S. K. GAULE, HONBLE TECHNICAL MEMBER DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING & DECISION : 28. 06. 2012 ORDER NO.. Per Shri S. K. Gaule :
Heard both sides.
2. Revenue filed this application for stay of operation of Order-in-Appeal No.Kol/Cus/CKP/576/2009 dated 22.9.2009, whereby the ld. Commissioner (Appeals) has dismissed the appeal filed by the Department on the ground that the appeal was not filed within the prescribed period under Section 129D of Customs Act, 1962.
3. The contention of the ld. Spl. Counsel for the Department is that the ld. Commissioner (Appeals) has dismissed the appeal filed by the Revenue on the ground that the appeal has to be filed by the Department in terms of the provisions of Section 129D and Section 128 of Customs Act, 1962. He has relied upon the decision of the Larger Bench of this Tribunal in the case of Commissioner of Central Excise, Raipur Vs. Monnet Ispat & Energy Ltd. reported in 2010 (257) ELT 239 (Tri.-LB) which is similar to the present case. The contention is that on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed under Sections 35E (1) or 35E (2) by the Committee to decide about filing of the appeal. The contention is that the delay is only 26 days which is in the condonable limit before the Commissioner (Appeals) as per the provisions of Section 128 of the Customs Act, 1962. The contention is that the ld. Commissioner (Appeals) has also not decided the issue on merits.
4. The ld. Advocate for the Respondent has reiterated the findings of the ld. Commissioner (Appeals).
5. We find that the Larger Bench of this Tribunal in the case of Monnet Ispat & Energy Ltd. (cited supra) in similar circumstances held has under :
46. [Order]. - In the result, therefore, the point which has been referred for consideration is hereby answered as under :-
The Tribunal has ample power to condone the delay in filing the appeal including the one filed under Section 35E(4) of the said Act. The period which can be condoned in relation to filing of the appeal under Section 35E(4) of the said Act would include the period availed by the review committee in terms of Section 35E(1) or 35E(2) of the said Act. As regards the appeals by the Department in terms of Section 35E(4), the same should be filed within one month from the date of communication of the order under sub-section (1) or sub-section (2) of the said section but not beyond four months from the date of communication of order of the adjudicating authority to the review committee. In case there is any delay in this regard, the same can be condoned in exercise of powers under Section 35B(5), on being satisfied about sufficient cause for such delay and power to condone the delay would include the period availed under Section 35E(1) or (2) by the reviewing committee to decide about filing of the appeal. On the analogy of the above decision and considering the facts that the delay is of 26 days, which is condonable limit for filing the appeal under Section 128 of the Customs Act, 1962, we condone the delay.
6. After condoning the delay, we take up the appeal itself for disposal. We find that the ld. Commissioner (Appeals) has not decided the issue on its merits. Therefore, we remand the case to the ld. Commissioner (Appeals) to decide the case afresh on its merits. All the issues are kept open. Both sides are at liberty to produce all the related documents. Needless to say that a reasonable opportunity of hearing may be given to the respondents. Appeal is disposed of by way of remand. Stay petition is disposed of.
Dictated and pronounced in the open Court.
Sd/ Sd/
( DR. D. M. MISRA ) ( S.K.GAULE )
JUDICIAL MEMBER TECHNICAL MEMBER
mm
2
Cus. Appeal No.572/09