T.P. Nambiar, Member (J) - (1.) THE above-captioned Stay Application is filed by the applicants along with the appeal referred to above praying that the duty demands as well as the penalty imposed be stayed during the pendency of this appeal.
(2.) When the matter came up for hearing the learned Junior Departmental Representative, Shri A. Choudhuri pointed out that the impugned order was passed by the Deputy Collector of Central Excise, Calcutta-1 Collectorate. Therefore, the appeal lies to the Collector of Central Excise (Appeals) and not before the Tribunal. Hence, he stated that the appeal is not maintainable. The learned Advocate, Shri S.K. Bagaria appearing for the applicants also did not dispute this position. But he stated that there were several orders passed by the Collector or the Additional Collector in similar matters and since those appeals were filed before the Tribunal, this appeal by inadvertence was filed by the applicants/appellants even though the same should have been filed before the Collector of Central Excise (Appeals).
(3.) HOWEVER, Shri Bagaria, learned Counsel, contended that the applicants are entitled for the benefit of Section 29 of the Limitation Act, 1963 read with Section 14 of 821 the Act ibid. In this connection, he relied on the following decisions : (i) 1976 (27) ITR 25 in the case of V.P. Misra and Others v. Commissioner of Income Tax, Lucknow and Ors. ; (ii) Sales Tax Cases : Vol. 38 : Page-543 in the case of Commissioner of Sales Tax, U.P. v. Madan Lai Das & Sons ; (iii) 1976 (1) Supreme Court Cases: 392 in the case of Mangu Ram v. Municipal Corporation of Delhi ; (iv) AIR 1990 Calcutta 380 in the case of Anjan Choudhury v. Anandaneer Co-operative Registered Housing Society and Ors.;