1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. CUSTOMS APPEAL NO.36 OF 2005 Hari Shankar & Sons ..Appellant. Vs. Union of India and another ..Respondents. .... WITH CUSTOMS APPEAL NO.40 OF 2005 Hari Shankar & Sons ..Appellant. Vs. Commissioner of Customs ..Respondent. .... Mr. J.M. Patel with Mr. V.P. Sawant for the Appellant. Mr. Pradeep S. Jetley for the Respondents. .... CORAM : DR. D.Y.CHANDRACHUD & J.P. DEVADHAR, JJ. 18th February, 2010. P.C.: 1. In 1994, the Appellant imported a consignment of steel tapes under an open general licence. A notice to show cause was issued on 20th January, 1995 upon which the Joint Commissioner of Customs adjudicated the matter by his order dated 12th July, 2004. Aggrieved by the order of the Joint Commissioner the Appellant filed an appeal before the Central Excise and Service Tax Appellate Tribunal which was dismissed by an order dated 17th January, 2005 on the ground that it was not maintainable. The Tribunal held that an appeal against the order passed by the Joint Commissioner was maintainable before the 2 Commissioner of Appeals. The Commissioner of Appeals on an appeal being filed dismissed the appeal on 23rd March, 2005. The Commissioner held that the appeal was filed on 24th January, 2005. Under Section 128 of the Customs Act, 1962 the appeal had to be filed within sixty days from the receipt of the order which could be extended by a further period of thirty days. The appeal having been filed beyond ninety days, the appeal was dismissed on the ground that it was not maintainable. The decision of the Commissioner of Appeals was confirmed by the Tribunal on 4th August, 2005. 2. Counsel appearing on behalf of the Appellant states that the Appellant is ready and willing to pursue the remedy in appeal but, he has been precluded from canvassing his grievance on merits by the impugned order of the Commissioner of Customs dated 23rd March, 2005 as confirmed by the Tribunal on 4th August, 2005. Learned counsel has relied upon a judgment of a Division Bench of this Court in Commissioner of Customs v. S.C.Gupta1 and has urged that if the time that was taken in pursuing the proceedings before the Tribunal is excluded, the appeal before the Commissioner would be within limitation. On the other hand, counsel appearing on behalf of the Department has relied upon a judgment of a Division Bench of this Court in Navinon Limited v. Union of India2. 1 2007(207) E.L.T. 377 2 2005(1) Bom.C.R.58. 3 3. We express no view one way or the other on the applicability of the two decisions to the facts of the present case. Since counsel appearing on behalf of the Appellant seeks an opportunity to place his submissions before the Commissioner of Customs (Appeals), regarding the applicability of Section 14 of the Limitation Act, we set aside the impugned order of the Commissioner of Customs (Appeals) dated 23rd March, 2005 and the order of the Tribunal dated 4th August, 2005 and remand the proceedings back to the Commissioner of Customs (Appeals) for a fresh decision. 4. Since we are remanding the proceedings back in terms of the request made before the Court, it is not necessary for this Court to answer the questions of law upon which the appeals were admitted. 5. All the rights and contentions of the parties are kept open. Since no other point has been pressed, the Appeals are accordingly disposed of. (Dr. D.Y.Chandrachud, J.) (J.P. Devadhar, J.)