2008 (5) TMI 434 - AT - Central Excise

Penalty - appeal against the Order-in-Original - along with the stay application - appeal has been filed in the wrong forum Held that - concerned authority, who received the appeal papers from the appellant, ought to have guided the appellant properly - authority which received the appeal paper could have returned the same to the appellant - Departmental authorities should have transferred the appeal papers to the Commissioner (Appeals) - remand the case to the Commissioner (Appeals) who would examine the appeal filed by the appellant in the wrong forum

Summary

Issues involved:
Appeal against Order-in-Original, Transfer of appeal to the right forum, Initiation of recovery proceedings during pendency of appeal and stay application.

Analysis:
1. Appeal against Order-in-Original: The appellant had filed an appeal against the Order-in-Original dated 31-1-2006 demanding duty, penalty, and interest under the Central Excise Act, 1944. The appeal was acknowledged by the Commissionerate, but it was filed in the wrong forum. The Tribunal noted that the appellant had also submitted a stay application along with the appeal. The Tribunal found that the appeal papers should have been guided to the right forum or transferred to the Commissioner (Appeals) by the receiving authority. The Department's failure to take appropriate action in this regard was criticized, and it was held that the recovery proceedings initiated during the pendency of the appeal were unjustified.

2. Transfer of appeal to the right forum: The Tribunal emphasized the importance of a Tax Payer Friendly approach by the authorities and highlighted the need for proper guidance to appellants in filing appeals. Despite the mistake made by the appellant in filing the appeal in the wrong forum, the Tribunal held that the Department should have taken corrective action, such as transferring the appeal to the correct forum. The Tribunal decided to remand the case to the Commissioner (Appeals) for examination of the appeal filed in the wrong forum and directed the Commissionerate to transfer the appeal papers for necessary action.

3. Initiation of recovery proceedings during pendency of appeal and stay application: The learned JDR representing the Revenue argued that the appellant should have filed the appeal against the Joint Commissioner's order instead of only appealing against the Detention Order. However, the Tribunal found that the initiation of recovery proceedings by the Assistant Commissioner during the pendency of the appeal and stay application was not justified. The Tribunal criticized the Assistant Commissioner for issuing a Detention Order without providing the appellant with an opportunity to be heard and held that the appeal should have been allowed to proceed in the correct forum without such actions.

In conclusion, the Tribunal remanded the case to the Commissioner (Appeals) for proper examination of the appeal filed in the wrong forum and directed the Commissionerate to transfer the appeal papers for necessary action. The Tribunal emphasized the need for a Tax Payer Friendly approach by the authorities and criticized the Department for not guiding the appellant properly. The initiation of recovery proceedings during the pendency of the appeal was deemed unjustified, and the Tribunal decided to dispose of the appeal by way of remand in the interest of justice.