Custom, Excise & Service Tax Tribunal
Genom Biotech Pvt. Ltd vs Commissioner Of Central Excise, Nashik on 25 November, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPLICATION No. ST/S/96066/13-Mum APPEAL No. ST/87519/13-Mum (Arising out of Order-in-Appeal No. RPS/85/NSK/2013 dated 19.3.2013 passed by Commissioner of Central Excise & Customs (Appeals), Nasik) For approval and signature: Honble Mr. S.S. Kang, Vice President ======================================================
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?
====================================================== Genom Biotech Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Nashik Respondent Appearance: Shri Dayananda K., C.A., for appellant Shri D.D. Joshi, Superintendent (AR), for respondent CORAM: Honble Mr. S.S. Kang, Vice President Date of Hearing: 25.11.2013 Date of Decision: 25.11.2013 ORDER NO Heard both sides.
2. The applicant filed this application for waiver of pre-deposit of dues. The applicant had already paid the amount of tax along with interest, therefore the pre-deposit of penalties is waived.
3. The Commissioner (Appeals) dismissed the appeal filed by the applicant as time barred as there was a delay of seven days.
4. The contention of the applicants is that the applicants are registered with the Revenue authorities as provider of taxable service at Nashik as well as Mumbai. Show cause notice was issued after taking into consideration the amounts appearing in the balance sheet, which are in respect of Nashik as well as Mumbai units. The contention is that the Commissioner (Appeals) pointed out regarding the delay. However, no opportunity was granted to the applicants to file application for condonation of delay and the applicants were under the impression that the appeal was heard on merits hence they had not filed application for condonation of delay before the Commissioner (Appeals).
5. The Revenue relied upon the findings of the lower authority and submitted that the appeal is filed beyond the normal period of limitation and the applicant had not filed any application explaining the delay in filing the appeal, therefore the impugned order is rightly passed.
6. I find that the Commissioner (Appeals) has power under Section 85 of the Finance Act to condone the delay of 30 days in filing the appeal. In the present case, the appeal was entertained by the Commissioner (Appeals) without raising any objection regarding the delay and the defect in filing the appeal by not filing a condonation application is a curable defect. In these circumstances, I find that opportunity should be granted to the appellant to file application for explaining the delay. In view of this, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals). The appellant undertakes to file application for condonation of delay in filing the appeal within two weeks from today. Thereafter the Commissioner (Appeals) will proceed with the appeal in accordance with law. The appeal is allowed by way of remand. Stay petition is allowed.
(Dictated in Court) (S.S. Kang) Vice President tvu 1 3