M/s. Kagaz Packaging Versus Commissioner of CGST & Central Excise, Nashik
Central Excise
2018 (8) TMI 89 – CESTAT MUMBAI – 2018 (362) E.L.T. 853 (Tri. – Mumbai
CESTAT MUMBAI – AT
Dated:- 26-7-2018
Appeal No. E/86405/2018 – Order No. A/86978 / 2018
Central Excise
Hon'ble Dr. Suvendu Kumar Pati, Member ( Judicial )
Shri G.P. Pingle, Consultant for the appellant
Shri H.M. Dixit, AC (AR) for the respondent
ORDER
The appellant M/s Kagaz Packaging has brought this appeal against the order of the Commissioner(Appeals) in refusing to condone delay of 21 days in filing appeal before him and not going to the merit of the case concerning imposition of excise duty on packaging material used for export of foods along with interest and penalty awarded by the first adjudicating authority on the ground that appellant failed to produce rewarehousing certificate from the concerned authority against clearance of nil rate of duty under the cover of ARE-3.
2. Ld. Counsel for the a
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ure in respect of removal of goods by the consignor and receipt of the goods by the consignee as well as procedure dealing warehousing certificate in which appellant being consignor, is required to obtain copy of AR3 duly signed by the consignee in proof of receipt of goods at his warehouse and get released from the obligation.
3. Ld. AR for the department on the other hand, supported the rationality of the order passed by the Commissioner (Appeals).
4. Heard both sides and perused the case records. It is found from the appeal memo and other documents available on record the initial appeal was preferred before the Commissioner (Appeals) holding the same to have been filed within the limitation period and the date of receipt of order-in-original was shown as 05.04.2010 while on enquiry made from the Nashik Commissionerate Division III by the Commissioner (Appeals), it was found untrue as the same order was dispatched by the Registered post AD on 04.03.2010 and the AD was received back
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ipt as the date on which acknowledgement was received by the department. Therefore, if the actual data is to be taken as the date of receipt of order-in-original, it is delayed about a week over 21 days.
5. In the delay condonation petition, which the appellant stated before the Commissioner that some security personnel had received the order at the factory which is situated 20 kms. away from the office and the delay was to be attributed to such fact of receipt by it in the factory. Such a plea was not taken while filing the appeal before the Commissioner (Appeals) and it was suppressed before the Commissioner which he observed to be mis-statement but in reality, going by the ethical practice adopted by the appellant it would amount to fraud within the definition of IPC. It has been held in numerous judicial pronouncements of the Apex court, the leading case being reported in AIR 1994 SC 853, in the case of S.P Chengalvaraya Naidu vs Jagannath that a person whose case is based on fals
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
o amounts to the abuse of the process of court, the court have been held to have an inherent power to set aside an order obtained by fraud practice upon that court. Similarly where the court is misled by the party or the court itself counts the mistake which prejudice the party the court as inherent power to recall its order.”
8. Though the above pronouncements were held in respect of civil disputes, it has a bearing on the case in hand for the reason that initial period of about 28 days delay was suppressed by the appellant while preferring an appeal before the Commissioner (Appeals). The ground stated in the appeal memo that the order was sent to the factory office that was received by the security personnel is not a convincing ground in the sense that such important registered letter cannot be dealt in such casual manner and assigned to the security personnel to handle the same and it appears improbable that such letter would take more than 3 weeks to travel a distance of 20 km to
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =