M/S. Sova Ispat Alloys Ltd vs Commr. Of Central Excise, Bolpur
- Case No.Excise Appeal No. E/76382/2014
Ratio decidendi
The rule this decision rests on
Where an appeal has been dismissed by the first appellate authority for non-compliance with the pre-deposit requirement under Section 35F of the Central Excise Act, 1944, and the merits have not been decided, the Tribunal may remand the matter to that authority to decide the appeal afresh on merit, with adequate opportunity of hearing to the appellant and all issues kept open. A delay in filing an appeal caused by the inadvertent filing of the appeal before the wrong forum and its return within a short period, followed by immediate re-filing, is a bona fide delay and constitutes sufficient cause for condoning the delay in filing. Where the appellant has subsequently made the pre-deposit required under the amended Section 35F, a stay application is rendered infructuous and is dismissed on that ground.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of the Order-in-Appeal No. 28/BOL/2014 dated-01/07/2014 passed by the Commissioner (Appeal-III), Central Excise, Kolkata)
For approval and signature of:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
======================================================
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. Sova Ispat Alloys Ltd.
APPELLANT(S) VERSUS Commr. of Central Excise, Bolpur
RESPONDENT(S)
APPEARANCE
Sri S.P. Siddhanta, Consultant FOR APPELLANT(S) Sri S.K. Naskar, A.C. (A.R.) FOR THE RESPONDENT(S) CORAM: DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DATE OF HEARING & DECISION : 19/06/2015
ORDER NO. FO/A/75320/2015 Per DR.D.M. MISRA
This Misc. application is filed seeking condonation of delay of 18 days in filing the appeal before this Tribunal.
2. The Ld. Consultant Shri S.P. Siddhanta for the applicant submits that inadvertently the appeal was filed on 21/09/2014 before the Ld. Commissioner (Appeals) and it was returned to them on 20/10/2014. Immediately thereafter on 22/10/2014, the present appeal has been filed.
3. The Ld. A.R. for the Revenue does not dispute about the said facts.
4. The reasons stated by the applicant, in my opinion, is sufficient warranting condonation of the bonafide delay in filing the appeal before this Forum. Consequently, the delay is condoned. M.A. (COD) allowed.
5. Ld. Consultant further submitted that the appeal has been filed after 6th of August, 2014 and they have deposited the required amount as per amended Section of 35F of CEA, 1944. Thus the stay application becomes infructuous.
6. Ld. A.R. for the Revenue does not dispute the same.
7. Consequently, the stay application is dismissed being infructuous. At this stage, the Ld. Consultant pointed out that the appeal itself could be taken up as the Ld. Commissioner (Appeals) has dismissed the appeal for non-compliance with the direction of pre-deposit under Section 35F of CEA, 1944 and the issue has not been decided on merit.
8. Ld. A.R. for the Revenue fairly accepts with the said contention of the Ld. Consultant.
9. Since the appeal has not been decided by the Ld. Commissioner (Appeals) on merit, in my opinion, it is prudent to remand the case to the Ld. Commissioner (Appeals) to decide the issue on merit afresh .Consequently, the appeal is remitted to the Ld. Commissioner (Appeals) for deciding the issue afresh on merit. Needless to mention that adequate opportunity of hearing be granted to the applicant. All issues are kept open. Appeal is allowed by way of Remand.
(Dictated and pronounced in the open Court) Sd/- 29/06/15 (D.M. MISRA) JUDICIAL MEMBER
k.b/-
Excise Appeal No. E/76382/2014
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