TMI Blog2016 (11) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) it is seen that the appeal filed by the petitioner was rejected as time barred. If that is so, the findings rendered by the Commissioner (Appeals) in paragraph 8.3 commenting upon the non-submission/belated submission of the BRC should be held to be without jurisdiction since the Commissioner (Appeals) could not have rendered the findings on merits when the appeal itself is held to be not maintainable. Therefore, the findings rendered in paragraph 8.3 of the order passed by the Commissioner (Appeals) has to be necessarily eschewed. So the first question is decided in favour of the petitioner. Whether the Department could refuse to consider the petitioner's case when admittedly the Original Authority did not exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - W.P.No.296 of 2014 and M.P.No.1 of 2014 - - - Dated:- 9-11-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr.R.Anish Kumar For the Respondent : Mr.Raj Kumar Jhabakh ORDER Heard Mr.R.Anish Kumar, learned counsel appearing for the petitioner and Mr.Raj Kumar Jhabakh, learned Junior Panel Counsel appearing for the respondent. By consent, the writ petition is taken up for final disposal. 2. The petitioner in this writ petition seeks for an issuance of a writ of Mandamus to forbear the respondent from recovering a sum of ₹ 20,69,545/- from the petitioner and to accept the Bank Realization Certificate (BRC) submitted by the petitioner vide letter dated 23.11.2006 and 27.07.2007 as proof of export and realizatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledgment given by the Department. So far as the penalty is concerned, the Original Authority did not impose any penalty and the Department filed an appeal as against that and both the appeals were heard together by the Commissioner (Appeals). However, on consideration of the appeal, it was found that it was filed beyond the period of limitation as stipulated under Section 128 of the Act. Therefore, the Commissioner (Appeals) after referring to the various decisions came to the conclusion that the appeal filed by the petitioner is time barred and the appeal filed by the Department was allowed and a penalty of ₹ 5,000/- was imposed on the petitioner which the petitioner has remitted. When proceedings were initiated for recovery of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion/belated submission of the BRC should be held to be without jurisdiction since the Commissioner (Appeals) could not have rendered the findings on merits when the appeal itself is held to be not maintainable. Therefore, the findings rendered in paragraph 8.3 of the order passed by the Commissioner (Appeals) has to be necessarily eschewed. So the first question is decided in favour of the petitioner. 6. So far as the second question is concerned, since the petitioner failed to respond to the notices issued by the authorities on 07.11.2006 and 15.06.2007, the Original Authority proceeded exparte and concluded that the petitioner has not produced the BRC. Therefore, they have to pay a sum of ₹ 20,69,545/- which they have availed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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