2015 (5) TMI 490 - AT - Central Excise

Condonation of delay - Transfer of case from one authority to another - Held that - appeal was filed in the office of Commissioner in Mangalore initially and thereafter it was transferred by the Commissioner, Mangalore to the office of the Commissioner in Mysore and in the impugned order Commissioner (Appeals) has taken the date of receipt of the appeal as the date on which it was received in his office and not the office of Commissioner in Mangalore - We have seen the acknowledgment received by the appellant's courier in Mangalore and it shows that rubber stamp is of the office of the Commissioner. We find in the case of M.R. International Vs. CC, Mumbai 2012 (10) TMI 227 - CESTAT, MUMBAI in a similar case, the Tribunal took the view that there was no delay in filing the appeal when the same is transferred by one authority to another. - In view of the fact that appeal had been received in the office of Commissioner, Mangalore in time, we consider that there was no reason and no need for filing an application for condonation of delay before the Commissioner (Appeals) for the delay and we also hold that there is no delay in filing the appeal. Accordingly since the Commissioner (Appeals) has dismissed the appeal as time-barred without considering the merits, we set aside the impugned order and remand the matter to the learned Commissioner (Appeals) to decide the matter afresh on merit in accordance with law - Decided in favour of assessee.

Summary

Issues: Appeal dismissed on the ground of delay, lack of application for condonation of delay, transfer of appeal between offices, consideration of delay in filing the appeal.

In this judgment by the Appellate Tribunal CESTAT Bangalore, the appeal was dismissed by the learned Commissioner (Appeals) due to being filed beyond the condonable period, with the observation that no application for condonation of delay was submitted. The appellant argued that the appeal was initially filed in the office of the Commissioner in Mangalore and later transferred to the office in Mysore. The acknowledgment received by the courier in both locations showed the rubber stamp of the respective offices. Citing precedents like M.R. International Vs. CC, Mumbai and Sukinda Chromite Mines of Tisco Ltd. Vs. CCE, Bubaneswar, the Tribunal held that when an appeal is transferred between authorities, there is no delay in filing. As the appeal was received in the office of Commissioner in Mangalore within time, the Tribunal found no need for a condonation of delay application. Consequently, the impugned order was set aside, and the matter was remanded to the learned Commissioner (Appeals) for a fresh decision on merit, emphasizing that any stay application should be separately considered before the appeal is addressed. The operative portion of the order was pronounced in open court on 25.11.2014.