M/S. Rani Motors vs Cce-Shillong

(Arising out of Order-in-Appeal No.02/SH/CE(A)/GHY/13 dated 05.03.2013 passed by the Commissioner of Customs & Central Excise(Appeals), Guwahati.)

FOR APPROVAL AND SIGNATURE

HONBLE DR. I.P. LAL, MEMBER(TECHNICAL)

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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s. Rani Motors Applicant (s)/Appellant (s)

Vs.

CCE-Shillong

Respondent (s)

Appearance:

Shri SP Sharma, Adv. for the Appellant (s)

Shri A.K.Biswas, (AR) for the Revenue (s)

CORAM:

Honble Dr. I.P. Lal, Member(Technical)

Date of Hearing/Decision :- 10.7.2015 Date of Pronouncement :- 04.08.2015

ORDER NO.FO/A/75420/2015

Per Dr. I.P. Lal.

1. Heard both sides and perused the records.

2. Shri S.P.Sharma, ld.Adv. appearing for ghe appellant mentions that the Honble High Court of Meghalaya vide its order dated 7.4.2015 in FA NO.3/2004 has set aside this Tribunals order dated 11.7.2014 whereby this Tribunal has dismissed their stay petition along with the Appeal on the ground that the appeal was not filed by them before Commissioner(Appeals) within the time limit of three months of communication of the order to them. He submits that the appellant did not receive the original order passed by the adjudicating authority. It is the submission that they came to no about the impugned order on 30.8.2010 when the range superindent requested them to pay the adjudged amount in pursuance to the stay order. He submits that immediately on receipt of the letter, the appellant wrote to supply a copy of the order-in-original to enable them to proceed to file an appeal. The matter was under correspondence between the appellant and the department and ultimately they got a certified copy of the order on 5.4.2011 which was acknowledged by them on 8.4.2011. He submits that if date of the receipt is commuted from 8.4.2011 in that case there is no delay on their part in filing the appeal. He submitted that even in presuming that they received a copy of the order as claimed by the department in that case also they were required to get a certified copy of the order to enable them to file an appeal before the Commissioner(Appeals). He invites the attention to the preamble of the order of the adjudicating authority according to which the original copy of the order i.e. uncertified copy furnished to them under the letter dated 17.8.2010 was only for private use and that as per para 2(b) of the said preamble to the order, copy of the order must bear a court fee stamp for the purpose of filing appeal. He submits that certified copy of the order was received by them at a much later date which caused the delay in filing appeal before the office of Commissioner(Appeals). He contended that full Bench of Kerala High AIR 2015 Kerala 24 and other High Court had already taken the view that a certified copy is required for filing appeal.

3. As per contra the ld.AR for the Revenue submitted that the copy of the order-in-original was served to the appellant on 19.8.2010 which is evident from the endorsement to this effect by the postal authorities on the postal receipts. He submitted that recovery letter was issued by the range superindent to them on 30.8.2010 and they wrote for copy of the order on 7.10.2010 after a lapse of one month which shows casual approach on the part of the appellant. He submits that it is the responsibility of the appellant to get the order certified by the department for the purpose of filing the appeal, but it appears from the approach on the part fo the appellant that they have been very casual and not pursuing the matter in the right perspective.

4. I find that the Appellant for the first time has raised an issue before this forum that certified copy of the order in addition to original copy of the order is necessary for the purpose of filing an appeal. However, this plea was not taken before the ld.Commisisoner(Appeals) and therefore he had no occasion to record his findings on this issue. Accordingly I am of the opinion that the case requires to be remitted back to the ld.Commissioner(Appeals) for his findings on the plea taken now by the Appellant and therefore the Commissioner(Appeals)s order is set aside with the direction for deciding the issue of limitation afresh after examining the appellants contention in this regard.

In the result the Appeal is allowed by way of remand.

(Pronounced in the open court on 04.08.2015.)

SD/

(I.P. LAL) MEMBER(TECHNICAL) sm

4 Appeal No.ST-70356/13