Thermal Papers Pvt. Ltd vs Commissioner Of Customs (Import)
- CitationAPPEAL No.C/87007/13
Ratio decidendi
The rule this decision rests on
Where the acknowledgement of receipt bears no actual date of receipt, but the order is shown as received by the Review Cell on a specific date, the appellant's date of receipt must be taken as no earlier than that Review Cell date, and the limitation period for appeal is computed from that date. Where the normal limitation period for appeal has not expired on the date of filing, once the extended period is taken into account, the delay falls within the condonable period, and the appellate authority is bound to condone the delay and decide the appeal on merits; dismissing the appeal as time-barred in such circumstances is not sustainable in law.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI
COURT No. II
APPEAL No.C/87007/13
(Arising out of Order-in-Appeal No.158/MCH/DC/CRARS/2013 dated 04/03/2013 passed by Commissioner of (Appeals), Mumbai)
For approval and signature:
Honble Mr. P.R. Chandrasekharan, Member (Technical)
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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?
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Thermal Papers Pvt. Ltd., Appellant Vs. Commissioner of Customs (Import) Mumbai Respondent
Appearance: Shri.Mukund Chouhan, CA for appellant Shri.Chatru Singh, Asst. Comm. (AR) for respondent
CORAM: Honble Mr. P.R. Chandrasekharan, Member (Technical)
Date of Hearing : 20/03/2015 Date of Decision : 20/03/2015
ORDER NO
The appeal is directed against Order-in-Appeal No.158/MCH/DC/CRARS/2013 dated 04/03/2013 passed by Commissioner of (Appeals), Mumbai.
2. Vide the impugned order, the learned lower appellate authority has dismissed the appeal of the appellant, M/s.Thermal Papers Pvt. Ltd. as time barred, inasmuch as the appeal was filed beyond the condonable period of thirty days. Hence, the appellant is before us.
3. The learned Consultant appearing for the appellant submits that the order-in-original was received by the employee of the appellant, one Shri Rakesh Kagde, on 10/05/2012 and the appeal has been filed on 03/07/2012 and therefore, the appeal is within time. However, in the acknowledgement given by Shri Rakesh Kagde, no date is mentioned as the actual date of receipt. However, the copy of the order has been received from the Review Cell and the date of receipt in the Review Cell is shown as 11/04/2012. Therefore, it is clear that the appeal has been received by the appellant on or after 11/04/2012. If 11/04/2012 is taken as the date of receipt, then the normal period of filing of appeal expires on 10/06/2012 and the extended period expired on 10/07/2012. The appellant was filed the appeal on 03/07/2012, that is, within the condonable period. The Commissioner (Appeals) could have condoned the delay in filing the appeal and decided the matter on merits and therefore, the impugned order dismissing the appeal as time barred is not sustainable in law.
4. The learned Assistant Commissioner (AR) appearing for the Revenue reiterates the findings of the lower appellate authority.
5. I have considered the submissions made by both the sides.
5.1 Even though the employee of the appellant did not put the actual date of receipt in the acknowledgement given, it is clear that the order has been received from the Review Cell and the Review Cell itself received the order on 11/04/2012. Therefore, the appellant could have received the order only after 11/04/2012 and not before. If 11/04/2012 is taken as receipt, it is clearly within the period of limitation for filing the appeal. The normal period expires on 10/06/2012 and the extended period for filing the appeal expires on 10/07/2012. Inasmuch as the appeal has been filed on 03/07/2012, the same has been filed within the condonable period of 30 days and the lower appellate authority could have condoned the delay and admitted the appeal and disposed of the same on merits. Therefore, the conclusion drawn of appeal being hit by time bar is clearly unsustainable in law. Hence, I remand the matter back to the lower appellate authority to condone the delay of 23 days in filing the appeal and consider the appeal on merits.
6. Thus, the appeal is allowed by way of remand.
(Dictated in Court)
(P.R. Chandrasekharan) Member (Technical)
pj
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