Custom, Excise & Service Tax Tribunal
M/S. Steer Engineering Pvt. Ltd vs Commissioner Of Central Excise, ... on 17 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: E/25046/2013-SM, E/25047/2013-SM [Arising out of Order-in-Appeal No. 327-328/2012 dated 17/10/2012 passed by Commissioner of Central Excise , BANGALORE-I( Appeal) ] M/s. Steer Engineering Pvt. Ltd. No.290, 4th Phase, Peenya Industrial Area, BANGALORE - 560058 KARNATAKA Appellant(s) Versus Commissioner of Central Excise, Service Tax And Customs BANGALORE-II PB 5400 CR BUIDING, QUEENS ROAD, BANGALORE 560 001. KARNATAKA Respondent(s)
Appearance:
Mr. Raghavendra B. Haijer, Advocate S. RAGHU ADV NO.543, 12TH CROSS, 8TH MAIN, J.P.NAGAR 2ND PHASE, BANGALORE 560 078 For the Appellant Shri N. Jagadish, Superintendent (AR) For the Respondent Date of Hearing: 17/11/2016 Date of Decision: 17/11/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21161-21162 / 2016 Per : S.S GARG The appellant has filed two appeals against the impugned order which was passed by the Commissioner (A) vide his order dated 17.10.2012 vide which the learned Commissioner (A) dismissed the two appeals of the appellant on the ground of limitation without going into the merits of the case.
2. Briefly the facts of the present case are that the appellant is a 100% EOU and is manufacturing plastic processing machine falling under Chapter Heading 84 of the First Schedule to the Central Excise Tariff Act. Appellant also held private bonded warehouse license No.48/2003 dated 23.4.2003 and they have sought for de-bonding of indigenous capital goods and raw materials. On verification, the Department observed that two CNW vertical machines which were bonded on 14.3.2005 and 21.3.2005 till the period up to 8.3.2010 and 21.3.2005 had expired the bond period and the appellant has not sought for extension of warehousing facility for the said machinery. Thereafter a show-cause notice was issued proposing to demand interest under Section 28 of the Customs Act and penalty in terms of Section 117 of the Customs Act. Thereafter vide Order-in-Original dated 1.6.2012, it was held by the Assistant Commissioner that the goods are permitted to clear on payment of appropriate duty allowing depreciation up to bonding period but also imposed interest from the date of expiry of bonding period till the date of clearance and also imposed penalty. Aggrieved by the said order, appellant filed appeal before the learned Commissioner (A) who vide order dated 17.10.2012 rejected the appeals on the ground of limitation as one appeal (E/25046/2013) was filed 26 days beyond the period of 60 days and in other appeal (E/25047/2013) there was a delay of 22 days. Aggrieved by the said order, the appellant has filed the present appeals.
3. I have heard the learned counsel for the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law and the learned Commissioner (A) has wrongly rejected the appeal merely on the ground of delay and has wrongly refused to condone the delay which was within condonable limit. He further submitted that the delay of 26 days 22 days were not deliberate and intentional but the delay was due to the fact that the Director of the Company was on tour. He further submitted that the Commissioner (A) should have adopted a liberal approach and condoned the delay because it was very much within his power to condone the delay at the relevant time which was 30 days after the expiry of two months for filing the appeal on sufficient ground. In support of his submission, he relied upon the decision of the Honble Karnataka High Court in the case of Affiliated Computer Services (I) Pvt. Ltd. vs. CST, Bangalore: 2012 (28) S.T.R. 432 (Kar.) wherein the Honble Karnataka High Court overruled the judgment of the Tribunal, Bangalore and condoned the delay in filing the appeal. The reason for delay in this case was that the recipient of the order in one department had not been communicated to the legal department of the company. However, the Honble Karnataka High Court allowed the appeal on the ground that appeal is a substantive right and narrow view should not be taken to dismiss the appeal.
5. In the present case also by taking a liberal approach, I am of the considered view that the delay in filing the appeal before learned Commissioner (A) was not intentional and deliberate and therefore, I condone the delay in filing the appeal before the learned Commissioner (A) and set aside the impugned order and direct the Commissioner (A) to decide the appeal on merit after affording an opportunity of hearing to the appellant and also opportunity of producing documents, if any.
(Operative portion of the Order was pronounced in Open Court on 17/11/2016.) S.S GARG JUDICIAL MEMBER rv 4