Bonai Industrial Co. Ltd vs Commissioner Of Customs And Service ...

C/COD/20574/2015, C/COD/20593/2015, C/COD/20595/2015 in C/20950/2015-DB, C/20969/2015-DB, C/20972/2015-DB

Appeal(s) Involved:

C/20950/2015-DB, C/20969/2015-DB, C/20972/2015-DB

[Arising out of Order-in-Appeal No. 108/2014-VCH dated 15/09/2014 passed by the Commissioner of Customs, Central Excise and Service Tax, Visakhapatnam-I ( Appeal)] [Arising out of Order-in-Appeal No. 119/2014 dated 16/09/2014 passed by the Commissioner of Customs, Central Excise and Service Tax, Visakhapatnam-I ( Appeal)] [Arising out of Order-in-Appeal No. 120/2014 dated 16/09/2014 passed by the Commissioner of Customs, Central Excise and Service Tax, Visakhapatnam-I ( Appeal)]

For approval and signature: HON'BLE MRS ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR ASHOK K ARYA, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

Bonai Industrial Co. Ltd. Rungta House, Chaibasa P.O. Jharkhand  833 201 Appellant(s)

Feegrade And Co. Pvt. Ltd. Rungta House, Chaibasa P O, Jharkhand  833 201 Appellant(s)

Versus

Commissioner of Customs And Service Tax, Visakhapatnam Central Excise Building, Port Area, Visakhapatnam  530 035 Andhra Pradesh Respondent(s)

Appearance:

Mr. S.C. Choudhury, CA No.9, Merry Life Apartments, Doctor's Colony, Peda Waltair, Visakhapatnam  530 017 Andhra Pradesh For the Appellant

Mr. Mohd. Yusuf, DR For the Respondent

Date of Hearing: 22/09/2015 Date of Decision: 22/09/2015 CORAM:

HON'BLE MRS ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE MR ASHOK K ARYA, TECHNICAL MEMBER

Final Order Nos. 22000-22002 / 2015

Per: ARCHANA WADHWA

In all the three appeals there is a delay of about seven months in filing the present appeals. It is seen that the impugned orders were passed by Commissioner (Appeals) on 15.09.2014 and the appeals stand filed in April 2015.

2. In the condonation of delay application the appellants have submitted that they have an office in Chaibasa in Jharkhand and the orders were sent there. Due to ignorance and confusion and because of nature of their job, they had no idea whether the orders were received or not. Now the learned CA appearing for the appellant has taken a categorical stand that the orders were not received by the appellant at all.

3. From the impugned orders we find that copies of the same were sent to the appellants address at Rungta House, Chaibasa P.O, Jharkhand as also to their authorized representative Shri. S.C. Choudhury at his address at Visakhapatnam. The appellants have not contended anything as to whether the impugned order was received by their authorized representative or not. Drawing our attention to the provisions of Section 153 of the Customs Act learned advocate submits that the impugned orders were required to be sent by registered AD whereas the same has been sent by speed post, which is contrary to the provisions of law. He also submits that he has a good case on merits and prays for condoning the delay and accepting the plea.

4. Learned DR appearing for the Revenue submits that huge and inordinate delay of seven months cannot be condoned by mere asking for the same. Drawing our attention to the affidavit of Shri. Kunal Chandra Barik working as a Manager of the appellant-company, he draws our attention to the fact that the appellant had admitted having received the impugned orders in which case the issue of sending them by speed post or otherwise looses its importance. He also draws our attention to earlier order of the Tribunal passed in the case of M/s. Bonai Industries Co. Ltd. wherein vide Final Order No. 21784/2015 dated 07.08.2015 delay of 155 days was not condoned. He submits that one of the appeals in the present set of appeal is M/s. Bonai Industries Co. Ltd. itself and the repeated delayed filing of appeals reflect upon the appellants attitude. He accordingly prays for rejecting the application for condonation of delay and for dismissal of the appeal as barred by limitation.

5. After giving careful consideration to the submissions made by both the sides, we would like to reproduce a para from the appellants affidavit.

The relevant order-in-appeal was sent to Chaibasa in Jharkhand and were misplaced at Chaibasa Office and could not be immediately traced out and attended to and therefore, there has been delay in preparing an appeal, for which we shall be praying for the condonation of delay before the Honble Customs, Central Excise and Service Tax Appellate Tribunal, Bangalore.

Reading of the above paragraph shows that the appellant has accepted receiving of the order at their Chaibasa office and is attributing the delay to the misplacement of the order in their office. There is no explanation forthcoming as to how and when and for what period the orders were misplaced at their Chaibasa office and when the same were located subsequently. We also take into consideration the earlier order of the Tribunal in the case of M/s. Bonai Industries Co. Ltd. wherein the delay of 155 days was not condoned. The delay in filing appeals is around seven months and cannot be considered to be genuine and bona fide delay on account of any compelling reasons. In fact no reasons stand advanced by the appellant. As such by following the earlier order we find no reasons to condone the huge delay of seven months in filing the present appeals. Accordingly the COD applications are rejected. Consequently all the three appeals get dismissed as barred by limitation.

(Order pronounced in open court)

(ASHOK K ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER

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