Oceana Textile Mills P. Ltd vs Commissioner Of Central Excise, ...

(Arising out Order-in- Appeal No. AT/60/BEL/04 dated 27.10.04 passed by the Commissioner of Central Excise (Appeals), Mumbai II)

For approval and signature: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S. S. Garg, 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? : No 2. Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? : Yes 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

Oceana Textile Mills P. Ltd. Appellant

Vs.

Commissioner of Central Excise, Belapur Respondent

Appearance:

Shri R.V. Shetty, Advocate for the appellant Shri Ashutosh Nath, AC (AR) for the respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S. S. Garg, Member (Judicial)

Date of hearing : 23.09.2015 Date of decision : 23.09.2015

O R D E R No:..

Per: P.K. Jain:

The ld. Counsel for the appellant submits that the Commissioner (Appeals) in this case has rejected the appeal on the grounds that the appeal is time barred. Ld. counsel submitted that they have received the Order-in-Original first time on 23.11.2001 even though the Order-in-Original is dated 23.08.2000.

2. On the last date of hearing, authorised representative was directed to find out from the Commissionerate when the Order-in-Original was dispatched and the date of receipt by the appellant. Ld. AR submits copy of the letter F.no. V(Trb Cell) CESTAT/Oceana/58/04 dated June 2015 from Additional Commissioner(Review), Belapur, addressed to the Asst. Commissioner (AR) wherein it is stated that they are not able to trace out the file from which Order-in-Original was issued. Ld. counsel also submitted that they had also approached the postal authorities, the matter being very old, postal authorities have informed that they do not have relevant records.

3. Keeping in view, the facts narrated by the appellant and authorised representatives inability to bring any evidence that the Order-in-Original was at least posted on or around 23.08.2000, it is not possible to determine the date from which the time period of 60 days is to be counted. Keeping in view the facts and circumstances of the present case, we set aside the order of the Commissioner (Appeals) and direct the Commissioner (Appeals) to decide the issue on merits. Ld. counsel also submits that the other appeal no. E/351/05 is relating to very same issue and both the appeal should be remanded and the Commissioner (Appeals) may be directed to decide both the matters at the same time i.e. the merits of the main issue and thereafter the recovery of the same from the sanctioned amount in the other case.

4. Keeping in view the request of the ld. counsel, both the appeals are allowed by way of remand with direction to Commissioner (Appeals) to decide the matter on merits. We are not expressing any opinion on the merits of the case.

5. Appeals are allowed by way of remand.

(Operative part pronounced in Court)

(S. S. Garg) (P.K. Jain) Member (Judicial) Member (Technical)

//SR

3 E/351 & 352/05