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2014 (6) TMI 786 - CESTAT KOLKATACondonation of delay - Appeal not filed in proper format - Held that:- appellant had filed the appeal before Commissioner (Appeals) on 29-7-2009, a copy of which is annexed to the present appeal at page No. 44 of the appeal paper book. Ongoing through the same, I find that it was received by the office of Commr. (Appeals) on 29-7-2009. The appellant had filed the appeal along with stay application, but not in the proper format, as prescribed for filing the appeal. However, it is not in dispute that the Department has received the said appeal memorandum and acknowledged the same on 29th July, 2009. No defect memo was issued to the appellant till May, 2010. Pursuant to the defect memo dated 31-5-2010, the applicant had filed the appeal in proper format on 17-6-2010. In these circumstances the date of filing of the initial appeal i.e. 29th July, 2009 be considered as the appeal for the purpose of Section 35A of CEA, 1944 and defects removed thereafter cannot be considered as the date of filing of the appeal before the office of Commissioner, Central Excise (Appeals). Thus, there is no delay in filing appeal before the ld. Commissioner (Appeals). Also, I find that the ld. Commr. (Appeals) has not decided the appeal on merit. In these circumstances, the case is remitted to the ld. Commr. (Appeals) for deciding the issue afresh - Decided in favour of assessee.
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