Whether condonation of delay allowed if appeal wrongly filed under different jurisdiction?

PJ/Case Law/2016-17/3442

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

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PJ/Case Law/2016-17/3442

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