Billets Elektro Werke Ltd vs Commissioner Of Customs, Mumbai

(Arising out of Order-in-Appeal No. 111/2004-NCH F.No. 3/49-252/2003TE dated 7.4.2004 passed by Commissioner of Customs (Appeals), Mumbai-1)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) and Honble Mr. Ramesh Nair, Member (Judicial)

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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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Billets Elektro Werke Ltd. Appellant Vs. Commissioner of Customs, Mumbai Respondent

Appearance: Shri Vinay N. Ansurkar, Advocate, for appellant Shri M.K. Mall, Assistant Commissioner (AR), for respondent

CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 15.9.2015 Date of Decision: 15.9.2015

ORDER NO Per: P.K. Jain

In the impugned order, the Commissioner (Appeals) has dismissed the appeal of the appellant on the grounds of limitation. The appeal was filed on 13th August 2003 as against the date of receipt of the order on 24th May 2003. Thus there was a delay of 20 days. According to the Commissioner (Appeals), no COD application was filed for the same.

2. Learned counsel for the appellant submits that it will be seen from the preamble to the order-in-original that the preamble states that the appeal can be filed within three months from the date of communication of this order. Thus the appellant was under the genuine bona fide belief that they can file appeal upto 24th August 2003. As against that, they have filed appeal on 13th August 2003. Further, when they came to know about the delay in filing the appeal, they have made an application dated 19.3.2004 for condonation of delay. It is not understood what the Commissioner (Appeals) implies when he states that no COD application and no affidavit has been filed.

3. Learned AR reiterates the findings of the Commissioner (Appeals).

4. We have seen the order-in-original. The preamble to the order-in-original very clearly states that the appeal can be filed within a period of three months. We also find that the appellant has filed the appeal beyond two months but within the condonable period of 20 days. Further, we find that on 19.3.2004 the appellant has in the form of letter made an application for condonation of delay for the same. There is no requirement of a separate affidavit.

5. Keeping in view the facts and circumstances, we are of the view that the delay should have been condoned by the Commissioner (Appeals). We set aside the order of the Commissioner (Appeals) and condone the delay. Since the Commissioner (Appeals) has not decided the issue on merits, the matter is remanded back to the Commissioner (Appeals) to decide the issue afresh. Further, since the appeal is pertaining to the period 2003, we direct that the Commissioner (Appeals) should dispose of the appeal as early as possible within a period of three months from the date of receipt of the order.

6. The appeal is allowed by way of remand to the Commissioner (Appeals).

(Pronounced in Court)

(Ramesh Nair) Member (Judicial) (P.K. Jain) Member (Technical)

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