2019 (1) TMI 1187 - AT - Customs

Condonation of delay of 1233 days in filing appeal - the remand instructions in Commissioner (Appeals) dt. 27.02.2015 sought to be appealed against by the appellant, has already been acted upon by the authority below and a decision inter alia directing to pay up the demanded amount along with interest has been thereafter issued by the Deputy Commissioner - Held that - The order of Commissioner (Appeals) dated 27.02.2015 had disposed of the appeal of appellant by directing the lower authority, as pointed out by Ld. A.R, to seek suitable clarification from the Board. That was done, albeit after nine months from the said order, on 26.11.2015. The clarification from the Board was issued in F.No.341/30/2012-TRU on 22.12.2015. The Deputy Commissioner thereon vide a letter dt. 12.04.2016 had conveyed the said clarification and directed the appellant to pay up the demand amount along with interest immediately - the remand instructions in Commissioner (Appeals) dt. 27.02.2015 sought to be appealed against by the appellant, has already been acted upon by the authority below and a decision inter alia directing to pay up the demanded amount along with interest has been thereafter issued by the Deputy Commissioner. The appellant cannot have any grievance against the order of the Commissioner (Appeals) since that has been acted upon. The appropriate appellate authority for the aforesaid mentioned order / decision of Deputy Commissioner dated 12.04.2016 will only be the Commissioner (Appeals) and appellant cannot jump the gun by filing an appeal, before this Tribunal - As the instant appeal itself cannot lie before this Tribunal, there will obviously be no point in considering the application for condonation of delay - COD application is dismissed - the appeal is also dismissed being not maintainable.

Summary

Issues:
Condensation of delay in filing appeal before the Appellate Tribunal CESTAT Chennai.

Analysis:
The appellant filed a Miscellaneous Application for condonation of delay of 1233 days in filing the appeal. The appellant had previously filed a writ petition before the High Court of Madras, challenging the lower adjudicating authority's orders. The High Court directed the appellant to approach the Tribunal. The appellant argued that the time spent before the High Court should be excluded under The Limitation Act. The appellant's advocate presented a detailed chronology of events to justify the delay, emphasizing the time spent before the High Court. The appellant sought condonation of delay based on these grounds.

The respondent argued that the Commissioner (Appeals) order was a remand order seeking clarification from the Board, which was subsequently provided to the appellant. The respondent contended that any appeal should be directed to the Commissioner (Appeals) and not the CESTAT. The Deputy Commissioner had issued a decision directing the appellant to pay the demanded amount along with interest, which the appellant contested. The respondent maintained that the appellant's grievance should be against the Deputy Commissioner's decision, not the Commissioner (Appeals) order.

After hearing both sides, the Tribunal agreed with the respondent's argument. The Tribunal found that the remand instructions in the Commissioner (Appeals) order had been acted upon, and a decision had been issued by the Deputy Commissioner. The Tribunal concluded that the appellant's appeal should be against the Deputy Commissioner's decision, which falls under the jurisdiction of the Commissioner (Appeals) as per the Customs Act. The Tribunal highlighted that the High Court had directed the appellant to approach the appropriate appellate authorities and not directly file an appeal before the CESTAT. Therefore, the Tribunal dismissed the condonation of delay application and subsequently dismissed the appeal for being not maintainable before the CESTAT.

In summary, the Tribunal ruled that the appeal should be directed to the Commissioner (Appeals) against the Deputy Commissioner's decision, as per the Customs Act. The Tribunal emphasized the High Court's directive for the appellant to approach the appropriate appellate authorities, leading to the dismissal of the condonation of delay application and the appeal for being not maintainable before the CESTAT.