Rahaman Khan Hotel Enterprises Pvt Ltd vs Commissioner Of Customs, Central ...

[Arising out of Order-In-Appeal No 45-2014 dated 23/04/2014 passed by Commissioner of Central Excise , GUNTUR( Appeal) ]

For approval and signature:

HON'BLE Shri JUSTICE G. RAGHURAM, PRESIDENT

HON'BLE Shri B.S.V.MURTHY, TECHNICAL 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?

Rahaman Khan Hotel Enterprises Pvt Ltd 4/2, Arundelpet GUNTUR - 02 AP Appellant(s)

Versus

Commissioner of Customs, Central Excise and Service Tax Guntur P.B.NO. 331...C.R.BUILDING, KANNAVARI THOTA, GUNTUR, - 520004 ANDHRA PRADESH Respondent(s)

Appearance:

None For the Appellant

Shri V. Ramakrishna, Authorised Representative For the Respondent

Date of Hearing: 06/02/2015

Date of Decision: 06/02/2015

CORAM:

HON'BLE Shri JUSTICE G. RAGHURAM, PRESIDENT

HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20261 / 2015

Per : JUSTICE G. RAGHURAM

Notice of the hearing of the stay application was dispatched and received by the appellant/petitioner. Appellant has however chosen to file a memorandum of written submissions for disposal of the stay petition on merits. Hence we consider the stay petition on merits. Appeal is preferred against the order dt. 23/04/2014 by the Commissioner of Customs, Central Excise and Service Tax (Appeals), Guntur.

2. The appellant herein preferred an appeal to the appellate Commissioner against an adjudication order dt. 24/07/2013 passed by the Joint Commissioner of Central Excise, Customs & Service Tax, Guntur along with an application seeking condonation of delay of 154 days. By the impugned order, the appellate Commissioner rejected the appeal on the ground that the appeal to that authority was filed beyond the extended period of limitation within his jurisdiction to condone.

3. The appeal before us is against the order of the appellate Commissioner. It is an established position in law that an appeal before CESTAT against the primary adjudication order where such an order is passed by an officer lower in rank and the Commissioner and hence an appeal against the primary order passed by the Joint Commissioner lies only to the appellate Commissioner. The CESTAT is a tribunal constituted under the Customs Act, 1962 and conferred jurisdiction to adjudicate appeals arising out of service tax disputes under the Finance Act 1994 as well. As a creature of the statute, the jurisdiction of the Tribunal is circumvented by the confirmation of specified jurisdiction and is neither .. Within the limits of conferred jurisdiction and since no appeal against the Joint Commissioner lies before this Tribunal and further since the order of the appellate Commissioner suffers from no error since that authority had no jurisdiction to condone a delay of 154 days, we find no appealable error warranting interference in the substantive appeal itself. Appeal is therefore required to puruse in other available remedies in law. This appeal is however without merits in circumstances and since a short issue is involved in the appeal, we dismiss the appeal itself for the reasons stated above and stay application also gets disposed of.

(Order pronounced and dictated in open court)

JUSTICE G. RAGHURAM PRESIDENT

B.S.V.MURTHY TECHNICAL MEMBER

Raja.

3