Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver   *   Imposition of anti dumping duty "Ammonium Nitrate"originating in exported from Russia, Indonesia, Georgia and Iran *   Exemption to a person making inter-State taxable supplies of handicraft goods from the requirement to obtain registration granted  *   Exemption from registration to job-workers making inter-State supply of services to a registered person granted *  The notification amends the rates of compensation cess on various motor vehicles *   Clarifcation for classification and GST rate on lottery *   Directions to Bank regarding export to Algeria *   Implementation of Notification No. 19 dated 5.8.2017 *   Enlistment of Agricultural and Processed Food Products Export Development Authority (APEDA) under Appendix 2C & 2E *   Extension in last date of  Export of preferential quota sugar to USA under TRQ quota *   Correction / Amendments in Table 2 of Appendix 3B Foreign Trade Policy 2015-20 *   Proformae for submission of applications for export of Red sanders wood and import of sandalwood notified *   Amendment in import policy of raw sugar *   Revision in Policy condition no 2 to Chapter 95 of ITC(HS), 2017 *   Clarification on difficulties related to recent amendments in Customs Act, 1962. *   Implementation of electronic sealing for containers by exporters *   Rate of exchange of conversion of the foreign currency with effect from 08.09. 2017 {See notification no 84/2017-Cus (NT),dt. 07.09.2017 in What’s new} *   Jurisdiction of customs officers for the purpose of audit defined {See notification no 85/2017-Cus (NT),dt. 07.09.2017 in What’s new} *   GST Workshop for babus held *   GST cess hike on luxury cars approved by cabinet *   Punjab Govt unable to pay salary to its employees *   Narendra Modi Proposes GST Registration for small traders. *   Govt restricts imports of gold, silver from South Korea  *   West Bengal Sweetmeat Makers go on Hunger-strike Against GST *   Appointment of officers as the Principal Chief Commissioners of Customs or Chief Commissioners of Customs and allotted their jurisdiction *   Amendment in Para 4.32(i) of chapter 4 and in para 6.01 (a) of chapter 6 of the Foreign Trade Policy 2015-20 *   Supply of essential commodities to the Republic of Maldives during 2017-18 *   Rate of exchange of conversion of the foreign currency with effect from 18th August, 2017 notified  *   Classes of persons who shall pay customs duty electronically notified *   Change in AIRs of Duty Drawback on Gold Jewellery, Silver Jewellery and Silver Articles 
Subject News *   Extension in the last date for filing the return in FORM GSTR-3B for the months of August to December, 2017 *   Seventh amendment to the CGST Rules, 2017 *   Notifying section 51 of the CGST Act, 2017 for TDS *   Granting exemption from registration to a casual taxable person making taxable supplies of handicraft goods. *   Extension in the time limit for filing of GSTR-6. *   Extension in the time limit for filing of GSTR-1, GSTR-2 and GSTR-3. *   Amendment in certain customs notifications in pursuance to change made in Budget 2017-18. *   Exemptions to goods imported for organising FIFA under 17, world cup, 2017 *   Seeks to extend due dates for furnishing details/Returns for the months of July, 2017 and August, 2017. *   System based reconciliation of information furnished in FORM GSTR-1 and FORM GSTR-2 with FORM GSTR-3B *   Single point service Contact@DGFT eastablished. *   Imposition of CVD on imports of Certain Hot Rolled and Cold Rolled Stainless Steel Flat Products *   Reduction of BCD on raw sugar upto a quantity of 3 lakh MT {See notification no 74/2017-Cus,dt. 07-09-2017in What’s new} *  Seeks to continue anti-dumping inforce concerning imports of "Metronidazole" originating in exported from China PR *  seeks to levy definitive anti-dumping duty, on Castings for Wind Operated Electricity Generators *  seeks to impose anti-dumping duty on "Styrene Butadiene Rubber (SBR) *   What is Form GST TRAN-1 and when to File it *   How To Revise Invoice In GST *   Advertising space in print media to attract 5% GST *  Seeks to impose anti-dumping duty on " TexturedToughened (Tempered) Glass ", originating in or exported from China PR *  Seeks to amend notification No. 49/2012 - Customs (ADD) dated the 26th November,2012 to modify the amount of anti-dumping duty on import of Caustic Soda originating in or exported from Iran, Saudi Arabia and USA. *  Seeks to impose anti-dumping duty on the imports of "Sodium Nitrite" originating in or exported from China PR. *  Notification No.82/2017-Customs (N.T.) dated 24th August, 2017 *  Amendment in import policy of Beans of the species Vigna mungo (L.) Hepper or Vigna radiate (L.) Wilczek under Chapter 7 of the ITC (HS) 2017, Schedule â I (Import Policy) *  Amendment in Para 3.24(j) of Chapter-3 of FTP 2015-20 *  Amendment in Para 2.07 of Foreign Trade Policy 2015-2020. *  Amendment in import policy of gold and silver under Chapter 71 of the ITC(HS) 2017, Schedule -I (I) *   Seeks to modify the amount of anti-dumping duty on import of Caustic Soda originating in or exported from Iran, Saudi Arabia and USA *   Seeks to impose anti-dumping duty on the imports of "Sodium Nitrite" originating in or exported from China PR *   Amendment in the CGST Rules, 2017   

Comments

Print   |    |  Comment

PJ/Case Law/2016-17/3442

Whether condonation of delay allowed if appeal wrongly filed under different jurisdiction?
Case:-LATHIA INDUSTRIES SUPPLIES CO. PVT. LTD. VersusCESTAT WEST ZONAL BENCH
Citation:-2016 (342) E.L.T. 535 (Guj.)
Issue:- Whether condonation of delay allowed if appeal wrongly filed under different jurisdiction?
Brief facts:- This petition was filed with following relief :-
“[A] Your Lordships may be pleased to quash and set aside the impugned Order No. A/10806/2014, dated 10-4-2014 passed by the Hon’ble CESTAT, West Zonal Bench, Ahmedabad. Application no. and further be pleased to quash and set aside the Order-in-Appeal No. 185/2012(Ahd-II)CE/AK/Commr(A)/Ahd., dated 30-9-2013 and Order-in-Original No. 9/AC/2012, dated 19-10-2012, passed by the Deputy Commissioner of Central Excise, Division I, Ahmedabad in the interest of justice;”
The brief facts are as under :-
The petitioner-company was engaged in business of manufacture of goods like Rubber Roll, Rubber Blanker, etc. and was availing exemption scheme as a Small Scale Industrial Unit.
The Department alleged that the petitioner-company had wrongly availed Cenvat credit in relation to certain items like Rubber/Ebonite Roll, for which show cause notice dated 9-8-2012 was issued calling upon the petitioner to show cause as to why Cenvat credit of Rs. 4,90,159/- be not reversed on account of such wrongful availement. The Deputy Commissioner confirmed the demand in the show cause notice by passing Order-in-Original dated 19-10-2012.
Aggrieved by the Order-in-Original, the petitioner preferred appeal before the Commissioner (Appeals-I) and as there was delay of 64 days, filed a separate application for condonation of delay. The ground for delay as contended by the petitioner was that under a mistake, the appeal came to be filed before a wrong forum of the same Department and when such mistake was realized, the aforementioned delay had occurred.
The Commissioner (Appeals-I), Central Excise, Ahmedabad dismissed the application for condonation of delay in view of Section 35 of the Central Excise Act. Such order came to be passed on 30-9-2013.
The petitioner preferred appeal before the CESTAT against order dated 30-9-2013 and CESTAT vide order dated 10-4-2014 rejected the appeal.
 
Appellant’s contention:-Learned Senior Advocate Shri Deven Parikh with learned Advocate Shri Kunal Nanavati for the petitioner submitted that in fact when the appeal came to be filed against the Order-in-Original, there was no delay. However, such appeal was filed before the Commissioner (Appeals) having a different jurisdiction instead of filing such appeal before the Commissioner (Appeals-I), Central Excise, Ahmedabad. Learned Senior Advocate took through the document at Annexure-G which bore the stamp of the appeal having been filed before a different forum and contended that the view taken by the Commissioner (Appeals) as well as CESTAT was hyper-technical in nature and that on merits, the petitioner had an excellent case which required adjudication rather than being scuttled on technical grounds.
 
Respondent’s contention:- Learned Advocate Shri Chintan Dave appearing for the Department had filed an affidavit in the Civil Application to answer this contention of the petitioner. He had also produced xerox copy of the Registers of the concerned Department. Despite this position, the Court had called upon learned Advocate Shri Dave to personally verify the Registers and verify the claim made by the petitioner with regard to filing of the appeal before a wrong forum, to which Shri Dave stated that he had personally verified the Inward Register maintained by the office where according to the petitioner the appeal was initially filed and had confirmed that such appeal was indeed filed before that authority. He therefore urged that he would not seriously object if the matter was remanded back to the stage of Commissioner (Appeals).
 
Reasoning of judgement:-In view of the aforementioned fact situation, on this short ground, the Court was inclined to remain the matter back to the state of appeal to be heard by the Commissioner (Appeals-I), Central Excise, Ahmedabad. The Commissioner (Appeals) took into consideration the contentions of the petitioner regarding filing of the appeal in time, but before a different forum in accordance with law. 
Accordingly, the petition was allowed to the aforesaid extent. The matter was remanded back, to be heard by the Commissioner (Appeals-I), Central Excise, Ahmedabad. Considering the period that had lapsed, the Commissioner (Appeals) may take up hearing of this case expeditiously. Rule was made absolute. No order as to costs.
In view of the order passed in the main matter, CA does not survive. Disposed of accordingly.
 
Decision:-Petition allowed.
Comment:- The analogy of case was that if delay in filing the appeal occurs due to the fact that the appeal is mistakenly filed before a wrong forum of the same Department and the petitioner corrects the samewhen such mistake is realized, then the application for condonation of delay cannot be dismissed as the appeal cannot be quashed on technical grounds.
 
Prepared by: RAKSHAY TATER
 
Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com