2008 (5) TMI 434

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..... he case to the Commissioner (Appeals) who would examine the appeal filed by the appellant in the wrong forum
Dr. S.L. Peeran, Member (J) and Shri T.K. Jayaraman, Member (T) REPRESENTED BY : Shri Sayed Tausif Ali, Sr. Manager (Taxation), for the Appellant. Shri K. Sambi Reddi, JDR, for the Respondent. [Order per : T.K. Jayaraman, Member (T)]. - As the issue lies in a short compass, the appeal itself is taken up for disposal along with the misc. application for early hearing and the stay application. This appeal has been filed against the OIA No. 15/2008(H-III) CE dated 25-2-2008 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals-I & III), Hyderabad are taken up for disposal. 2. Shri Sayed Tausif Ali, .....

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..... for recovery u/s. 11A of the Central Excise Act, 1944. The appellant filed reply stating that since the appeal is filed along with the stay petition before the Appellate Authority, no recovery proceedings can be initiated till the disposal of the stay petition by the Appellate Authority. In spite of the above request, the Assistant Commissioner passed an Order of Detention under Section 11 of the Central Excise Act, 1944 even without providing an opportunity of being heard to the appellant. Against the said Order of Detention, an appeal was filed before the Commissioner (Appeals), Hyderabad-III Commissionerate. The learned Commissioner (Appeals) held that the appeal cannot be filed, before him against the Detention memo. He stated that the .....

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..... ach. In any case, atleast, the authority which received the appeal paper could have returned the same to the appellant. None of the above things had been done. In these circumstances, the initiation of recovery proceedings while the appeal and stay application are pending is not at all justified. In our view, the Departmental authorities should have transferred the appeal papers to the Commissioner (Appeals). In any case, in the interest of justice, we remand the case to the Commissioner (Appeals) who would examine the appeal filed by the appellant in the wrong forum. The Commissioner of Customs Central Excise, Hyderabad-III Commissionerate, who received the appeal on 3-5-2006, should transfer the papers to the Commissioner (Appeals) for ne .....

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