Shri Bharat J Mehta vs Commissioner Of Customs (Prev.), ...
- CitationAppeal No. C/85443 & 88253/13
Ratio decidendi
The rule this decision rests on
Section 14 of the Limitation Act applies to exclude the time spent prosecuting a bona fide appeal before a wrong forum, so that a revision wrongly filed before the Joint Secretary is excluded in computing the limitation period for an appeal to the Tribunal, and delay may be condoned on that basis. Where an order of the Commissioner (Appeals) was not received by the appellant in time because the appellant's premises had been locked and sealed by other authorities, the period for appeal runs from the date of effective service of the earlier order, and an appeal filed within sixty days of such effective service is within time.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. No. S/49-213/2010/TS dated 17.7.2012 passed by the Commissioner of Customs (Appeals), Mumbai-III).
For approval and signature:
Honble Shri Anil Choudhary, Member (Judicial) Honble Shri P.S. Pruthi, Member (Technical)
======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen of the order?
4. Whether order is to be circulated to the Departmental : Yes authorities? ======================================================
Shri Bharat J Mehta Appellant
Vs.
Commissioner of Customs (Prev.), Mumbai Respondent
Appearance: Shri Bharat J Mehta, Self for Appellant
Shri M.K. Mall, Assistant Commissioner (AR) for Respondent
CORAM: SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) SHRI P.S. PRUTHI, MEMBER (TECHNICAL)
Date of Hearing: 02.02.2015
Date of Decision: 02.02.2015
ORDER NO.
Per: Anil Choudhary
The appellant has filed the present COD application, stay application and appeal against Order-in-Appeal No. No. S/49-213/2010/TS dated 17.7.2012 passed by the Commissioner of Customs (Appeals), Mumbai-III.
2. The brief facts are that the impugned order dated 17.7.2012 passed by the Commissioner of Customs (Appeals) was served on the appellant sometime in the month of August, 2012. Thereafter the appellant has moved before the Joint Secretary, Department of Revenue, Ministry of Finance, Govt. of India, New Delhi. Vide letter of the Department of Revenue signed by the concerned Section Officer, the appellant was informed that the appellant has to file an appeal before the appellate forum as the review does not lie before the Joint Secretary (Revision Application). Thereafter, the appellant has filed the present appeal on 13.1.2013. Thus, the applicant prays that delay be condoned and COD application be allowed.
3. The learned AR opposes the application for Condonation of Delay and contends that there is a delay of four months. He further states that filing of Revision to a wrong forum cannot be the basis for condonation of delay.
4. Having considered the rival contentions, we find that the appellant after receiving the impugned order had wrongly filed the revision application to the Joint Secretary, and on receipt of letter from the office of the Joint Secretary, has immediately filed the appeal within a months time before this Tribunal. Further, the appellant is entitled to benefit of Section 14 of the Limitation Act which provides if the appellant has filed an appeal bona fide before the wrong forum, the time taken before such forum is required to be excluded. Thus, the COD application is allowed and appeal is admitted.
5. With the consent of both sides, we take up appeal for hearing. We find from the impugned order that the Commissioner (Appeals) has dismissed the appeal of the appellant without going into merits of the case. We find from the letter of the Commissioner of Customs (Prev.) dated 27.7.2010, which is annexed to the appeal filed, wherein it is mentioned that the appellant has never received the copy of Order-in-Original dated 20.3.1995, as the office premises of the appellant was locked and sealed by Income Tax Department and FERA authorities during the period 1993 to 2004. Thus, taking into consideration the effective date of service as 13.8.2010, of the Order-in-Original dated 20.3.1995, we find that the appeal before the Commissioner (Appeals) was filed on 21.8.2010, which was filed within the time allowed for filing appeal, i.e. 60 days from date of receipt of the appeal. In this view of the matter, we set aside the impugned Order-in-Appeal and remand the matter back to the Commissioner (Appeals) to decide the appeal on merits within a period of 3 months from the date of receipt of a copy of this order. We further direct the appellant to produce a copy of this order before the Commissioner (Appeals) and seek an opportunity of personal hearing. Stay application is also disposed of.
(Dictated and pronounced in Court)
(P.S. Pruthi) (Anil Choudhary) Member (Technical) Member (Judicial)
Sinha
1
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