Custom, Excise & Service Tax Tribunal
General Manager, Ordnance Factory ... vs Commissioner Of Customs, Mumbai on 26 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/375/05 [Arising out of Orders-in- Appeal No. 71/2005-MCH dated 27/1/2005 passed by the Commissioner of Customs (Appeals, Mumbai-I] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
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General Manager, Ordnance Factory Khamaria, Jabalpur
:
Appellant
VS
Commissioner of Customs, Mumbai
:
Respondent
Appearance
Shri. Parag Vyas, Advocate for the Appellants
Shri. Chatru Singh, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 26/8/2016
Date of decision 5/10 /2016
ORDER NO.
Per : Ramesh Nair
The present appeal is against Order-in-Appeal whereby Ld. Commissioner(Appeals) rejected the appeal on the ground of delay in filing appeal before him.
2. Against the Order-in-Original No. S/3-25/93 GS 15.12.95 // 22.8.2000 the appeal was filed before the Commissioner(Appeals) on 2/8/2004 therefore Commissioner(Appeals) rejected the appeal being time bar.
3. Shri. Parag Vyas, Ld. Counsel for the appellant submits that Original order was dated 15.12.95 and also dated 22.8.2000 is mentioned. He submits that copy of the order is attested copy whereas it is not signed by the Asstt. Commissioner as on 15.12.2005 and therefore it is not order which was appealable. Therefore the Ld. Commissioner should not have dismissed the appeal on the ground of time bar. He further submits that appellant is Government of India factory under Ministry of Defence for this reason also demand confirmed is not leviable.
4. Shri. Chatru Singh, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. He further submits that it is clear from the Order-in-original that the same was passed on 15.12.1995 thereafter attested copy was issued to the appellant on 22/8/2000 therefore though the copy of the order bears both the dates, as regard the signing of the order, whenever a copy of the order is issued it is shown as signed by the authority and attested by the officer issueing the copy therefore there is no dispute that the order was passed and attested copy of the same was provided to the appellant. Therefore appeal filed in the year 2004 is time bar and the commissioner (Appeals) has no power to condon the delay over and above prescribed time limit.
5. We have carefully considered the submissions made by both sides and perused the record.
6. We find that fact is not under dispute that order-in-original against which the appellant filed an appeal before the Commissioner(Appeals) was passed on 15.12.1995. The Attested Order copy against which appeal was filed appears to be issued on 22.8.2000, the appeal before the Commissioner(Appeals) was filed on 2.8.2004 therefore there is clear delay of around four years from the date of issue of even attested copy of the order. The submission of the Ld. Counsel that the order is not signed does not hold water for the reason that it is attested copy issued by the department wherein it is clearly mentioned that it is copy of the signed order, secondly if there is dispute impugned order that cannot be raised for dealing with the time in filing appeal before the Commissioner(Appeals). As regard the submission being Government factory there should not be levy of duty is subject matter of the merit of the case, which cannot be raised when the appeal itself is not maintainable being time bar before the Commissioner(Appeals). As per our above discussion, we do not find any substance in the appeal therefore order passed by the Commissioner (Appeals) is legal and proper which does not require any interference, we therefore uphold the impugned order and dismiss the appeal of the appellant.
(Order pronounced in court on 5/10/16 ) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 3 C/375/05