M/S. Shree Shyam Filament vs C.C.E. & S.T. Jaipur-I
- CitationAppeal No. E/54169/2014-EX(SM)
Ratio decidendi
The rule this decision rests on
Where an appeal is filed within the prescribed period in the office of an authority not competent to receive it, and the receiving authority fails to forward it to the competent appellate authority despite requests, the appeal is to be treated as having been filed within time; the delay attributable to that misdirection cannot be held against the appellant, and the competent appellate authority's dismissal of the appeal as time-barred, on the footing that it lacks power to condone delay, cannot stand.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Original No. 35 (RDN)CE/JPR-I/2013 dated 05.02.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Jaipur].
For approval and signature:
Honble Shri Ashok Jindal, Member (Judicial)
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?
M/s. Shree Shyam Filament .Appellants
Vs.
C.C.E. & S.T. Jaipur-I .Respondent
Appearance:
Shri H. Bajaj, Advocate for the Appellants
Shri R.K. Mishra, DR for the Respondent
CORAM:
Hon'ble Shri Ashok Jindal, Member (Judicial)
Date of Hearing: 21.05.2015
FINAL ORDER NO. 51718/2015-EX(SM)
Per Ashok Jindal:
Heard the parties. After hearing the parties I find that appeal itself can be disposed of at this stage. Therefore, waiver of pre deposit is granted and appeal is taken up for final disposal.
2. The facts of the case are that the appellant received an adjudication order on 01.03.2010 which was passed by the Adjudicating Authority on 24.02.2010. Inadvertently appellant filed an appeal in the office of Assistant Commissioner on 20.04.2010. Later on an appeal was filed in the office of Commissioner (A) on 25.08.2011. During the intervening period the appellant made several requests to the office of Assistant Commissioner to transfer the appeal to the office of Ld. Commissioner (A) but no heed was paid to the request of the appellant and the Ld. Commissioner (A) dismissed the appeal on the ground that appeal has been filed beyond a period of limitation and he has no power to condone the delay. Aggrieved from the said order appellant is before me.
3. Considered the submissions made before the Ld. Counsel by the appellant as appeal was filed wrongly in the office of Assistant Commissioner within time. Therefore, it was the duty of the Assistant Commissioner either not to receive the appeal or to transfer the appeal to the concerned officer i.e. the Office of the Commissioner (A) which Assistant Commissioner failed to do so. In these circumstances, I hold that appellant has filed the appeal within time as prescribed in the law. Therefore, the order passed by Ld. Commissioner (A) in the appeal have no legs to stand, the same is set aside and appeal is allowed by way of remand with a direction to the Ld. Commissioner (A) to decide the appeal on its own merits.
4. With these terms stay application as well as appeal are disposed off.
(Dictated and pronounced in the open court)
(Ashok Jindal) Member (Judicial)
Bhanu
2
E/54169/2014-EX(SM)
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