Ada Cellworks Wireless Engineering Pvt ... vs Commissioner Of Central Excise, ...
- CitationAppeal No. 84-2013
Ratio decidendi
The rule this decision rests on
Where the period of limitation for an appeal is computed under the statute, the relevant date from which delay is reckoned is the date of receipt of the order, and not the date of its dispatch; a Larger Bench decision to this effect binds the Tribunal, and an appellate authority that has reckoned delay from the date of dispatch has acted contrary to that binding rule. Where the appellate authority has rejected a condonation of delay application on the basis of a date of computation that is contrary to binding authority, the proper course is to set aside the impugned order and remit the matter for the authority to consider the condonation application, the stay application and the appeal afresh in accordance with law.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 84-2013 dated 18/07/2013 passed by Commisioner Of Central Excise, Customs and Service Tax , HYDERABAD-II( Appeal) ]
For approval and signature:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL 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 Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
ADA Cellworks Wireless Engineering Pvt Ltd Rooom No. 207/208, 2nd Floor, Naviketan Building, 62, Sarojini Devi Road, Opp Clock Tower SECUNDERABAD - 500003 AP Appellant(s)
Versus
Commissioner of Central Excise, Customs and Service Tax Hyderabad-i KENDRIYA SHULK BHAVAN, L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)
Appearance:
Shri HARISH BINDUMADHAVAN, Advocate DELOITTE CENTRE, 100/2, RICHMOND ROAD, BANGALORE 560 025 For the Appellant
Shri R. Gurunathan, Addl. Commissioner(AR) For the Respondent
Date of Hearing: 06/03/2015
Date of Decision: 06/03/2015
CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20541 / 2015
Per : B.S.V.MURTHY
The appeal has been dismissed on the ground that the same has been filed beyond the condonable period. Therefore the requirement of predeposit is waived and appeal itself is taken up for final disposal.
2. The learned counsel submits that in this case the Commissioner(Appeals) has considered the date of dispatch of the order as the relevant date for calculating the period of delay in the filing of appeal. He relies on the decision of the Larger Bench of the Tribunal in the case of Margra Industries Ltd. Vs. CCE, New Delhi [2008(10) STR 81 (Tri. LB)] to submit that date of receipt is the relevant date and not the date of dispatch. He relies on paragraph 11of the order referred to above. He also submits that if the date of receipt 16/04/2014 is taken into consideration, the appeal is filed within the condonable period. Therefore he requests that the matter may be remanded to the Commissioner(Appeals) to consider the COD application filed by them afresh and thereafter proceed to decide the stay application and appeal in accordance with law.
3. Since the issue is covered by the decision of the Larger Bench, I consider that the Commissioner should have considered the application for condonation of delay in accordance with law and thereafter proceeded to decide the stay application and appeal if called for. Accordingly, the impugned order is set aside and the matter is remanded to the Commissioner(Appeals) to decide the COD application, stay application and appeal in accordance with law. Appeal and stay application disposed of.
(Order pronounced and dictation in open court)
B.S.V.MURTHY TECHNICAL MEMBER
Raja.
3
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