Forbes Marshall Arca Pvt. Ltd vs Commissioner Of Central Excise, Pune I

(Arising out of Order-in-Appeal No. Pl/RKS/05/2012 dated 06-01-2012 passed by Commissioner of Central Excise (Appeals), Pune)

For approval and signature:

Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)

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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 : No 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?

====================================================== Forbes Marshall Arca Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Pune I Respondent

Appearance: Shri Mehvl Jiwani, C.A. for Appellant Shri R.K. Das, Deputy Commissioner (AR), for Respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 15/09/2015 Date of Decision : 15/09/2015

ORDER NO

Per: M.V. Ravindran

This appeal is directed against Order-in-Appeal No. Pl/RKS/05/2012 dated 06-01-2012.

2. Heard both sides and perused the records.

3. On perusal of records, we find that the first appellate authority has rejected the application filed by the appellant for condonation of delay, consequently the appeal also was dismissed. We find that the appellant had filed the appeal before the first appellate authority belatedly by 88 days. The application for condonation of delay, they had taken a ground that they had not received order-in-original from the adjudicating authority. The justification given by the appellant was not accepted by the first appellate authority, he came to a conclusion that the appellant has not justified the delay properly.

4. It is to be noted that during the material period, he had authority to condone the delay up to 90 days, from the initial period of 90 days in filling the appeal before him. In our considered view this issue was being agitated by the appellant in various forums and could not have any reason for not contesting the matter before the first appellate authority in time we find that there could be a situation that appellant could not have received the order-in-original, as we find that there is no acknowledgement on record of the receipt of the order in original by the appellant.

5. In our view, the first appellate authority should have condoned the delay and disposed the appeal on its merits. Be that as it may, we condone the delay in filing the appeal before the first appellate authority, and direct the first appellate authority to restore the appeal to its original number and dispose of the same on merits after following the principles of natural justice. At the same time, we are of the view with the appellant should be visited with a cost for filling an appeal belatedly before the appellate authority, accordingly we direct the appellant to pay an amount of Rs. 10,000/- as costs to the Commissioner of Central Excise Pune-1, on before 25/10/2015 and report the same to the first appellate authority, who had ascertaining such compliance, shall hear the appeal on its merits, after following the principles of natural justice.

6. The appeal is allowed by the way of remand as indicated herein above.

(Operative portion of the order pronounced in court on completion of the hearing of case).

(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)

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