SCA/2669/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2669 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.S.SHAH AND HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= GUJARAT FLAVOURS PVT. LTD. - Petitioner(s) Versus THE UNION OF INDIA & 2 - Respondent(s) ================================================= Appearance : MR HASIT DILIP DAVE for Petitioner(s) : 1, MR RM CHHAYA for Respondent(s) : 1 – 4. ================================================= CORAM : HONOURABLE MR.JUSTICE M.S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 21/02/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE M.S.SHAH) 1. Leave to add Assistant Commissioner of Central Excise, Waghodia Division, Vadodara-II as respondent no.4. Leave also granted to place on record a copy of attachment order dated 14th February 2008. SCA/2669/2008 2/6 JUDGMENT 2. Rule. Mr.R.M. Chhaya, learned Central Government Standing Counsel waives service of rule on behalf of the respondents. On the facts and in the circumstances of the case, we have taken up the petition for final disposal. 3. In this petition under Articles 226 and 227 of the Constitution, the petitioner has prayed for directions to respondent no.3-Commissioner (Appeals), Vadodara to accept the petitioner's appeal memo lying with the Office of the Assistant Commissioner of Central Excise, Waghodia Division, Vadodara-II and to hear the appeal and stay application against the order in original dated 12th January 2007. The petitioner has also prayed that the adjudicating authority, viz. respondent no.2 be restrained from making recovery on the basis of the order in original till the petitioner's appeal and stay application are heard. 4. The facts leading to filing of this writ petition, briefly stated, are as under: 4.1 Respondent no.2-Additional Commissioner of Central Excise & Custom, Vadodara-II passed order in original dated 12th January 2007 confirming a demand of Rs.11,82,286/-, interest amount of Rs.88,503/- and penalty of Rs.5,00,000/-. It is the petitioner's case that the amount of duty as well as interest (Rs.11,82,286/- + Rs.88,503/-) were already paid by the petitioner before issuance of Show Cause Notice. The learned advocate for the petitioner prepared appeal memo and stay application and instructed the petitioner's staff member to file the appeal. However, on 22nd March 2007 the employee who had recently joined the company filed the appeal in the Office of the Assistant Commissioner, Central Excise, Waghodia Division, Vadodara-II, instead of filing it in the Office of the Commissioner (Appeals). The Office of the Assistant Commissioner also made an endorsement of receipt of the appeal. SCA/2669/2008 3/6 JUDGMENT 4.2 Subsequently, respondent no.2-the adjudicating authority made attempts for recovery of the penalty amount. Thereupon, the petitioner made inquiries and learnt that the appeal was inadvertently filed in another office. The petitioner has, therefore, moved this Court for the aforesaid reliefs. 5. Mr.Hasit Dave, learned advocate for the petitioner has relied upon the order dated 16th March 2005 in Special Civil Application No.4229 of 2005, wherein also the appellant had filed the appeal by mistake in the Office of the Commissioner (Administration), instead of lodging the appeal with the Office of the Commissioner (Appeals). In the said matter, the then learned Assistant Solicitor General for the Union of India accepted that the prayer seeking direction to transfer the appeal and stay application from the Office of the Commissioner (Administration) to the Office of the Commissioner (Appeals) can be granted and that the respondents could have no objection to the same. After recording the above statement the Court directed the Commissioner (Administration) to transfer the appeal to the Office of the Commissioner (Appeals) along with the stay application within the period of seven days. The Court also passed an order that till the Commissioner (Appeals) hears the stay application, no recovery shall be made. It is submitted by the learned advocate for the petitioner that since the facts are similar, similar reliefs may be granted. 6. In the instant case, however, affidavit in reply has been filed by respondent no.2-Additional Commissioner of Central Excise & Custom opposing the petition and submitting that merely because the petitioner had served a copy of the appeal memo in the Office of the Assistant Commissioner, that could never be considered as filing of the appeal within the period of limitation. It is submitted that it might be in the nature of an advance copy of the appeal. It is SCA/2669/2008 4/6 JUDGMENT contended that even under the Appeal Rules, it is incumbent upon the appellant to serve an advance copy on the authority which had passed the order in original and therefore, service of such copy of the appeal memo in an office other than the Office of the Commissioner (Appeals) cannot be considered as proper filing so as to be treated as appeal having been filed within the period of limitation. 7. In view of the above contentions raised in the affidavit in reply, we put a query to Mr. R.M. Chhaya, learned standing counsel for the Union of India whether the appeal memo with the order in original filed in the Office of the Assistant Commissioner bore any stamp and other formalities, Mr.Chhaya fairly stated that the order in original was bearing Court Fee Stamp, but there appeared no Court Fee Stamp on the appeal memo. 8. Mr.Hasit Dave for the petitioner further pointed out that if the appeal memo was merely an advance copy to be served on the adjudicating authority, the same would have been served on the Additional Commissioner, respondent no.2, who had passed the order in original. But the recently joined employee of the petitioner company had by mistake filed the appeal in the Office of the Assistant Commissioner, Waghodia Division, whose staff had also put the endorsement of receipt stamp on 22nd March 2007. 9. We also find that letter dated 14th October 2007 of the Assistant Commissioner of Central Excise, Waghodia Division states that the said office had received on 22nd March 2007 a copy of the appeal memo and the stay application from the petitioner. 10. It does appear that there was some negligence on the part of the petitioner in not taking proper care to see that the appeal memo with the order in original was duly lodged in the Office of the SCA/2669/2008 5/6 JUDGMENT Commissioner (Appeals). At the same time having regard to the facts and circumstances of the case, we are of the view that the interests of justice would be served, if respondent no.4-Assistant Commissioner of Central Excise, Waghodia Division, Vadodara-II, respondent no.4 herein is directed to transfer the petitioner's appeal lodged on 22nd March 2007 against the order in original dated 12th January 2007, to the Commissioner (Appeals), Vadodara, respondent no.3 herein within one week from the date of receipt of a certified copy of this judgement, and thereafter, the Commissioner (Appeals), respondent no.3 herein shall entertain the appeal and the stay application as having been filed within the period of limitation and grant the petitioner a week's time to complete the remaining formalities, if any. It is directed accordingly. Till the Commissioner (Appeals) hears and decides the stay application in the above appeal, the order of penalty shall not be executed against the petitioner. 11. In view of the above order, the order of attachment dated 14th February 2008 shall stand vacated. 12. We are making it clear that we are passing this order in view of the peculiar facts and circumstances of the case including the fact that the petitioner had already paid the duty amount of Rs.11,82,286/- with interest amount of Rs.88,503/- even before filing of appeal and according to the learned advocate for the petitioner even before issuance of the Show Cause Notice by the adjudicating authority. 13. Rule is accordingly made absolute. However, in the facts and the circumstances of the case, we direct the petitioner to pay costs SCA/2669/2008 6/6 JUDGMENT of this petition to the respondents, which are quantified at Rs.2,500/- (Rupees two thousand and five hundred only) in one set only, which shall be paid within one month from today. (M.S. SHAH, J.) (RAVI R. TRIPATHI, J.) karim