TMI Blog2023 (10) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... re is also constructive error or negligence on the part of the receiving clerk in the Department. Either such clerk should have directed and guided the person, who had come to file appeal, to the right counter. Alternatively, it was the duty of the Assistant Commissioner to forward the appeal papers to the office of the Commissioner (Appeals), as it has been received by him mistakenly. The appellant has filed the appeal on 26.09.2018 and the Commissioner (Appeals) have erred in taking the date of filing appeal as 15.03.2022 - the appeal was filed in proper time as permitted under law. The impugned order is set aside and the appeal is allowed by way of remand to the Commissioner (Appeals) to hear the appellant on merits and pass a rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dministrative Area, Bhopal, the clerk, who had gone to file the appeal, mistakenly presented the same at the counter of the Assistant Commissioner of the Central Excise (Division). The receipt counter of the Assistant Commissioner also accepted the appeal memo without any murmur. The appellant was issued proper receipt for filing the appeal memo, by the office of the Assistant Commissioner. 3. Thereafter, in the year 2019, the office set-up of the appellant, shifted from Bhopal to New Delhi. The Bhopal main plant office was entrusted to look after the pending matters of the appellant-assessee at Bhopal. In course of time, a similar refund claim which was pending before the Department of the main plant, was allowed. Thereafter, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that after filing of the appeal, there was no communication from the office of the Asstt. Commissioner to take back the appeal and file it before the correct office, nor the Asstt. Commissioner returned the appeal memo with any forwarding note. Thus, the appellant as a person of ordinary prudence, did not have any inkling, that the appeal is not filed properly. Under such facts and circumstances, it is urged that the appeal could not have been rejected on the ground of limitation. Learned Counsel also relies on Section 14 of the Limitation Act, which provides that time taken in pursuing the litigation before a wrong forum due to mistake, is ignorable and has to be excluded for calculation of limitation. Learned Counsel have also relied on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that there is also constructive error or negligence on the part of the receiving clerk in the Department. Either such clerk should have directed and guided the person, who had come to file appeal, to the right counter. Alternatively, it was the duty of the Assistant Commissioner to forward the appeal papers to the office of the Commissioner (Appeals), as it has been received by him mistakenly. Thus, I find that the appellant has filed the appeal on 26.09.2018 and the Commissioner (Appeals) have erred in taking the date of filing appeal as 15.03.2022. 7. In view of my aforementioned findings and observations, I hold that the appeal was filed in proper time as permitted under law. The impugned order is set aside and the appeal is allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
