M P STEEL CORPORATION Vs. COMMISSIONER OF CENTRAL EXCISE
LAWS(SC)-2015-4-63
SUPREME COURT OF INDIA
Decided on April 23,2015

M P Steel Corporation Appellant
VERSUS
COMMISSIONER OF CENTRAL EXCISE Respondents


Referred Judgements :-

CAPE BRANDY SYNDICATE V. IRC [REFERRED TO]
KASTURCHAND V. WAZIR BEGUM [REFERRED TO]
BHARAT BANK LIMITED DELHI VS. EMPLOYEES OF BHARAT BANK LTD [REFERRED TO]
GARIKAPATI VEERAYA VS. N SUBBIAH CHOUDHRY [REFERRED TO]
UJJAM BAI VS. STATE OF UTTAR PRADESH [REFERRED TO]
TOWN MUNICIPAL COUNCIL ATHANI VS. PRESIDING OFFICER LABOUR COURTS HUBLI [REFERRED TO]
NITYANANDA M JOSHI VS. LIFE INSURANCE CORPORATION OF INDIA [REFERRED TO]
BHUDAN SINGH VS. NABI BUX [REFERRED TO]
INDIA ELECTRIC WORKS LIMITED VS. JAMES MANTOSH [REFERRED TO]
ROSHANLAL KUTHALIA VS. R B MOHAN SINGH OBEROI [REFERRED TO]
COMMISSIONER OF SALES TAX U P LUCKNOW VS. PARSON TOOLS AND PLANTS KANPUR [REFERRED TO]
NEW INDIA ASSURANCE COMPANY LIMITED VS. SHANT1 MISRA ADULT [REFERRED TO]
COMMISSIONER OF SALES TAX U P VS. MADAN LAL DAS AND SONS BAREILLY [REFERRED TO]
KERALA STATE ELECTRICITY BOARD TRIVANDRUM VS. T P KUNHALIUMMA [REFERRED TO]
VINOD GURUDAS RAIKAR VS. NATIONAL INSURANCE COMPANY LIMITED [REFERRED TO]
UNION OF INDIA VS. HARNAM SINGH [REFERRED TO]
HITENDRA VISHNU THAKUR VS. STATE OF MAHARASHTRA [REFERRED TO]
MUKRI GOPALAN VS. CHEPPILAT PUTHANPURAYIL ABOOBACKER [REFERRED TO]
OFFICER ON SPECIAL DUTY LAND ACQUISITION VS. SHAH MANILAL CHANDULAL [REFERRED TO]
MAHARAJA CHINTAMANI SARAN NATH SHAHDEO VS. STATE OF BIHAR [REFERRED TO]
P SARATHY VS. STATE BANK OF INDIA [REFERRED TO]
SHYAM SUNDER VS. RAM KUMAR [REFERRED TO]
UNION OF INDIA VS. WEST COAST PAPER MILLS LTD [REFERRED TO]
CONSOLIDATED ENGINEERING ENTERPRISES VS. PRINCIPAL SECRETARY [REFERRED TO]
SHAKTI TUBES LTD VS. STATE OF BIHAR [REFERRED TO]
J KUMARADASAN NAIR VS. IRIC SOHAN [REFERRED TO]
AJMERA HOUSING CORPORATION VS. COMMISSIONER OF INCOME TAX [REFERRED TO]
OM PRAKASH VS. ASHWANI KUMAR BASSI [REFERRED TO]
THIRUMALAI CHEMICALS LIMITED VS. UNION OF INDIA [REFERRED TO]
RANBAXY LABORATORIES LTD VS. UNION OF INDIA [REFERRED TO]
TIRUMAREDDI RAJARAO VS. STATE OF ANDHRA PRADESH [REFERRED TO]
UNION CARBIDE INDIA LTD VS. COMMISSIONER OF CUSTOMS [REFERRED TO]
ABDUL SATTAR CHOUDHURY VS. ABDUL RUSAN [REFERRED TO]
MST. DULIYABAI VS. VILAYATALI [REFERRED TO]
BALAJI NAGAR RESIDENTIAL ASSOCIATION VS. STATE OF TAMIL NADU [REFERRED TO]
KARNATAKA MINERALS AND MFG. CO. VS. C.C.E. AND CUS. [REFERRED TO]



Cited Judgements :-

ANUPAM INDUSTRIES LTD. VS. STATE LEVEL INDUSTRY FACILITATION COUNCIL [LAWS(GJH)-2022-12-684] [REFERRED TO]
CHAIRMAN AND TRUSTEE, CHIRAKKAL KOVILAKAM DEVASWOMS AND ANOTHER VS. STATE OF KERALA AND OTHERS [LAWS(KER)-2017-8-55] [REFERRED TO]
VELAR ENGINEERING WORKS PVT. LTD. VS. AUTHORIZED OFFICER/CHIEF MANAGER, INDIAN BANK [LAWS(MAD)-2019-9-477] [REFERRED TO]
B K EDUCATIONAL SERVICES PRIVATE LIMITED VS. PARAG GUPTA AND ASSOCIATES [LAWS(SC)-2018-10-36] [REFERRED TO]
PRADESHIK COOPERATIVE DAIRY FEDERATION LTD. VS. AUTHORITY UNDER MINIMUM WAGES ACT AND ORS. [LAWS(ALL)-2016-1-34] [REFERRED TO]
MOHIUDDIN AND ORS. VS. APPELLATE AUTHORITY FOR INDUSTRIAL AND FINANCIAL RECONSTRUCTION AND ORS. [LAWS(ALL)-2015-8-205] [REFERRED TO]
FRANCISCO MILAGRES COLACO AND ORS. VS. MOHANDAS DAMODAR DHAIMODE AND ORS. [LAWS(BOM)-2019-7-404] [REFERRED TO]
KUMMARI LAKSHMAIAH (ANGADI) AND OTHERS VS. STATE OF ANDHRA PRADESH AND ANOTHER [LAWS(APH)-2015-12-65] [REFERRED TO]
ABDUL SALAM S/O- LT SEKENDAR ALI VS. UNION OF INDIA [LAWS(GAU)-2021-2-147] [REFERRED TO]
BHATPARA PAPERS PVT. LTD. VS. THE BOARD OF TRUSTEES FOR THE PORT OF KOLKATA [LAWS(CAL)-2015-12-131] [REFERRED TO]
SENBO ENGINEERING LTD. VS. HOOGHLY RIVER BRIDGE COMMISSIONERS [LAWS(CAL)-2020-12-11] [REFERRED TO]
MOHANLAL AGARWAL VS. MANJAN DEVI PATNI & ORS [LAWS(CAL)-2020-3-17] [REFERRED TO]
KOLKATA MUNICIPAL CORPORATION VS. JAIN INFRA PROJECTS LIMITED [LAWS(CAL)-2021-8-48] [REFERRED TO]
INDIAN OIL CORPORATION LTD. VS. GREAT EASTERN SHIPPING CO. LTD. [LAWS(DLH)-2021-3-84] [REFERRED TO]
ASHWANI SHARMA VS. KANTA SHARMA & ORS. [LAWS(DLH)-2017-1-120] [REFERRED TO]
A.P. POWER COORDINATION COMMITTEE AND ORS. VS. LANCO KONDAPALLI POWER LTD. AND ORS. [LAWS(SC)-2015-10-104] [REFERRED TO]
BALESHWAR DAYAL JAISWAL VS. BANK OF INDIA & ORS [LAWS(SC)-2015-8-6] [REFERRED TO]
UTTAM DAS BAISHNAB VS. STATE OF TRIPURA [LAWS(TRIP)-2021-1-60] [REFERRED TO]
KALPRAJ DHARAMSHI VS. KOTAK INVESTMENT ADVISORS LIMITED [LAWS(SC)-2021-3-36] [REFERRED TO]
RAM KUMAR & OTHERS VS. BOARD OF REVENUE [LAWS(ALL)-2017-5-591] [REFERRED TO]
SMT. PRABHABAI WD/O PANDURANG KHANDEKAR VS. FULCHAND S/O CHINTAMAN SELOKAR [LAWS(BOM)-2016-5-63] [REFERRED TO]
BALMER LAWRIE AND CO. LTD. VS. UNION OF INDIA [LAWS(BOM)-2018-8-279] [REFERRED TO]
SHAHAJI NIVRUTTI GAIKWAD VS. SHRIPATI RANGRAO CHAVAN [LAWS(BOM)-2020-7-5] [REFERRED TO]
SMT. BRIJ MADANLAL SHARMA VS. SMT. PUSHPALATA SOHANLAL SHARMA [LAWS(BOM)-2022-2-124] [REFERRED TO]
SANTANA RODRIGUES VS. FRANCISCO XAVIER FERNANDES [LAWS(BOM)-2022-8-12] [REFERRED TO]
M/S. HARYANA SURAJ MALTING LTD. VS. PHOOL CHAND [LAWS(SC)-2018-5-92] [REFERRED TO]
SIVADASAN VS. NIRMALA [LAWS(KER)-2022-4-62] [REFERRED TO]
BIR SINGH AND ORS. VS. UNION OF INDIA AND ORS. [LAWS(P&H)-2015-10-12] [REFERRED TO]
SUPERINTENDING ENGINEER VS. EXCISE AND TAXATION OFFICER [LAWS(SC)-2019-10-92] [REFERRED TO]
GAYATRI PROJECT LIMITED VS. MADHYA PRADESH ROAD DEVELOPMENT CORPORATION LIMITED [LAWS(MPH)-2022-1-87] [REFERRED TO]
TRIPENTA HOTELS(P)LTD. VS. EMPLOYEES STATE INSURANCE CORPORATION [LAWS(KER)-2016-4-100] [REFERRED TO]
HARISHCHANRA CHANDRAHAS PARIKH VS. MAKBUL MOHMADALI VORA [LAWS(GJH)-2022-9-742] [REFERRED TO]
SURESH CHANDRA TAMBOLI VS. LEGAL REPRESENTATIVES OF HAJI MUSHTAQ HUSSAIN [LAWS(RAJ)-2018-1-122] [REFERRED TO]
CENZER INDUSTRIES LTD. VS. THE INCOME TAX OFFICER, 5(1)(3) AND ORS. [LAWS(BOM)-2016-1-157] [REFERRED TO]
IVP LIMITED AND ANR VS. UNION OF INDIA AND ORS [LAWS(BOM)-2017-10-105] [REFERRED TO]
ICICI BANK LTD VS. CHOUDHARY RAJNI & ANR [LAWS(DLH)-2016-5-816] [REFERRED]
ABDUL SALAM, S/O ABDURAHIMAN, AGED 50 YEARS, KADAKKOTTIRI VEEDU, KUMMINIPARAMBU, KONDOTTY VS. CHALIL SAJITHA, D/O AHAMMEDKUTTY, AGED 35 YEARS, THAZHATHETHODUVIL HOUSE, PULIYAPARAMBU P.O, KONDOTTY 673 638 [LAWS(KER)-2017-3-67] [REFERRED TO]
JAIWANTI VS. HEERA MANI AND OTHERS [LAWS(HPH)-2017-5-84] [REFERRED TO]
HEERA MANI VS. STATE OF H P AND OTHERS [LAWS(HPH)-2016-9-215] [REFERRED]
MANISH KUMAR VS. UNION OF INDIA [LAWS(SC)-2021-1-34] [REFERRED TO]
RAJESH SAH VS. STATE OF UTTARAKHAND [LAWS(UTN)-2021-4-1] [REFERRED TO]
SURYACHAKRA POWER CORPORATION LIMITED VS. ELECTRICITY DEPARTMENT [LAWS(SC)-2016-9-86] [REFERRED TO]
VORTEX ENGINEERING WORKS VS. UNION OF INDIA [LAWS(BOM)-2018-10-264] [REFERRED TO]
TATA CONSULTANCY SERVICES LTD VS. INSPIRA IT PRODUCTS PVT LTD [LAWS(BOM)-2018-9-160] [REFERRED TO]
LAL MAHAL LIMITED VS. ABDUL GHAFFAR [LAWS(DLH)-2018-4-384] [REFERRED TO]
TRAFFIC MEDIA INDIA PVT. LTD. VS. DELHI METRO RAIL CORPORATION [LAWS(DLH)-2019-7-484] [REFERRED TO]
MON MOHAN KOHLI VS. ASSISTANT COMMISSIONER OF INCOME TAX [LAWS(DLH)-2021-12-252] [REFERRED TO]
COASTAL OIL AND GAS INFRASTRUCTURE PRIVATE LIMITED VS. ASSISTANT COMMISSIONER [LAWS(MAD)-2017-2-364] [REFERRED TO]
GANESAN REP BY ITS POWER AGENT G. RUKMANI GANESAN VS. THE COMMISSIONER, THE TAMIL NADU HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS BOARD [LAWS(SC)-2019-5-12] [REFERRED TO]
M/S.TRIPENTA HOTELS(P)LTD VS. EMPLOYEES STATE INSURANCE CORPORATION [LAWS(KER)-2016-4-97] [REFERRED TO]
DIVISIONAL ENGINEER, HIGHWAYS VS. K MUTHAMMAL [LAWS(MAD)-2021-2-60] [REFERRED TO]
JOHN MATHEW VS. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENE [LAWS(KER)-2018-5-11] [REFERRED TO]
VED PARKASH VS. RAJPAL [LAWS(P&H)-2019-10-78] [REFERRED TO]
V.K.P.K. ARIVITHURAI AND BROTHERS VS. CESTAT [LAWS(MAD)-2017-1-341] [REFERRED TO]
DELHI METRO RAIL CORPORATION VS. TRAFFIC MEDIA INDIA PVT. LTD. [LAWS(DLH)-2019-7-97] [REFERRED TO]
HARAPRASAD GHOSH VS. THE STATE OF WEST BENGAL & ORS. [LAWS(CAL)-2017-9-92] [REFERRED TO]
DURGA RAY VS. KSHIRODE CHANDRA GHOSH AND SONS PVT LTD AND ORS [LAWS(NCLT)-2017-1-14] [REFERRED TO]
U CHANDRAN S/O KANARAN VS. GOVERNMENT OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA [LAWS(KER)-2017-12-127] [REFERRED TO]
DAVID CHACKO, S/O. CHAKKOCHAN VS. PIRAVOM MUNICIPALITY, PIRAVOM P.O, ERNAKULAM DISTRICT, PIN.686 664, REPRESENTED BY ITS SECRETARY AND OTHERS [LAWS(KER)-2017-2-273] [REFERRED TO]
G.GOPAKUMAR VS. ANCY THANKACHAN PHILIP [LAWS(KER)-2019-6-210] [REFERRED TO]
WESTFORT ACADEMY FOR HIGHER EDUCATION VS. EMPLOYEES STATE INSURANCE CORPORATION REGIONAL OFFICE [LAWS(KER)-2020-1-182] [REFERRED TO ]
JIGNESH SHAH VS. UNION OF INDIA [LAWS(SC)-2019-9-95] [REFERRED TO]
DEVELOPMENT COMMR., MEPZ, SEZ AND HEOU, CHENNAI VS. HOSPIRA HEALTH CARE INDIA (P). LTD. [LAWS(MAD)-2017-6-224] [REFERRED TO]
PRIDHIVI ASSET RECONSTRUCTION AND SECURITISATION COMPANY LIMITED VS. NAIHAA RETAIL PRIVATE LIMITED [LAWS(MAD)-2017-7-214] [REFERRED TO]
PASCHIM GUJARAT VIJ COMPANY LTD. THROUGH MANOJKUMAR JAMNADAS (EXE.ENG.) VS. KADVANI FORGE LIMITED [LAWS(GJH)-2017-11-212] [REFERRED TO]
RELIANCE INDUSTRIES LIMITED VS. UNION OF INDIA [LAWS(GJH)-2017-11-269] [REFERRED TO]
DEPUTY COMMISSIONER AND SPECIAL LAND ACQUISITION OFFICER VS. S. V. GLOBAL MILL LIMITED [LAWS(KAR)-2019-9-114] [REFERRED TO]
BALA BAKSH VS. MAGAN LAL AND ORS. [LAWS(RAJ)-2016-2-44] [REFERRED TO]
AGNITY TECHNOLOGIES PVT LTD VS. COMMISSIONER OF INCOME TAX-1 [LAWS(DLH)-2017-9-257] [REFERRED TO]
JOTHI BRICK WORKS VS. STATE OF TAMIL NADU [LAWS(MAD)-2021-8-152] [REFERRED TO]
UNION OF INDIA VS. GUJARAT STATE ELECTRICITY CORPORATION LIMITED [LAWS(GJH)-2016-10-13] [REFERRED TO]
NHPC LIMITED VS. BGS-SGS-SOMA JV [LAWS(DLH)-2020-6-52] [REFERRED TO]
DEEPAK S.P. VS. B. GOVARDHANAN NAIR [LAWS(KER)-2021-11-110] [REFERRED TO]
FAISAL VS. VIKAS CHACKO [LAWS(KER)-2019-7-213] [REFERRED TO]
DURGA RAY VS. T D KUMER AND BROS LTD AND ORS [LAWS(NCLT)-2017-1-24] [REFERRED TO]
THE SECRETARY VIRUDHUNAGAR HINDU NADARS SENTHIKUMARA NADAR COLLEGE COMMITTEE, VIRUDHUNAGAR VS. DR. K. RAJARAM PANDIAN & ORS. [LAWS(MAD)-2017-4-240] [REFERRED TO]
DISTRICT CENTRAL CO-OP. BANK LTD. VS. UNION OF INDIA [LAWS(MPH)-2017-10-106] [REFERRED TO]
MRITUNJAY KUMAR SINGH SON OF LATE JITENDRA PRASAD SINGH VS. STATE OF BIHAR THROUGH PRINCIPAL SECRETARY [LAWS(PAT)-2018-9-38] [REFERRED TO]
FALCON TYPES LTD VS. CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL; COMMISSIONER OF CUSTOMS (SEAPORT-IMPORT) [LAWS(MAD)-2016-6-303] [REFERRED]
M/S.FALCON TYPES LTD. VS. THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, [LAWS(MAD)-2016-6-148] [REFERRED TO]
SUDIPTA KOLEY VS. M. BHOWMICK [LAWS(CAL)-2019-7-88] [REFERRED TO]
INDIA YAMAHA MOTOR PVT. LTD. VS. SEEMA BHATIA [LAWS(DLH)-2019-7-434] [REFERRED TO]
DHARUBHAI MAKNABHAI MAKWANA VS. KESIBEN CHUNIYABHAI MAKWANA [LAWS(GJH)-2019-10-8] [REFERRED TO]
KAPIL AND OTHERS VS. UNION OF INDIA AND OTHERS [LAWS(MPH)-2017-5-45] [REFERRED TO]
OIL & NATURAL GAS CORP. LTD. VS. GUJARAT ENERGY TRANSMISSION CORPORATION. LTD. & ORS. [LAWS(SC)-2017-3-141] [REFERRED TO]
ASSISTANT COMMISSIONER (CT) LTU, KAKINADA VS. GLAXO SMITH KLINE CONSUMER HEALTH CARE LIMITED [LAWS(SC)-2020-5-6] [REFERRED TO]
MUHAMMED K.B VS. T.V.ACHUMMA [LAWS(KER)-2016-2-149] [REFERRED TO]
CHIEF ENGINEER VS. GOPALKRISHNA [LAWS(KAR)-2019-11-53] [REFERRED TO]
SRIBASH CHANDRA SAHA VS. RUBBER BOARD [LAWS(TRIP)-2019-5-14] [REFERRED TO]
KOYAKKANARI SIVADASAN VS. K. K. NIRMALA [LAWS(KER)-2022-4-61] [REFERRED TO]
RATHEESH S/O. C.M. RAGHAVAN AND OTHERS VS. A.M. CHACKO S/O. MATHAI AND OTHERS [LAWS(KER)-2018-10-181] [REFERRED TO]
VIGNESH ENTERPRISES VS. CUSTOMS EXCISE SERVICE TAX APPELLATE TRIBUNAL [LAWS(MAD)-2019-9-91] [REFERRED TO]
T.V. ACHUMMA VS. THE STATE OF KERALA AND ORS. [LAWS(KER)-2015-7-86] [REFERRED TO]
MARANNA MADAPPA VS. THIPPE RANGAPPA [LAWS(KAR)-2017-1-90] [REFERRED TO]
REV. K.V. ABRAHAM VS. COMMISSIONER, VARANASI [LAWS(ALL)-2016-8-73] [REFERRED TO]
MANOJ KUMAR VS. DEBTS RECOVERY APPELLATE TRIBUNAL AND 6 OTHERS [LAWS(ALL)-2016-9-26] [REFERRED]
BRANDAVAN FOOD PRODUCTS VS. COMMISSIONER (APPEALS) [LAWS(CHH)-2019-5-63] [REFERRED TO]
ANGELO BROTHERS LTD. VS. BENNETT, COLEMAN & CO. LTD. [LAWS(CAL)-2017-5-23] [REFERRED TO]
PROPERTY COMPANY LTD. VS. ROHINTEN DADDY MAZDA [LAWS(CAL)-2016-12-85] [REFERRED TO]
MSTC LIMITED VS. STANDARD CHARTERED BANK [LAWS(BOM)-2019-5-66] [REFERRED TO]
LALITA DHANRAJ JADHAV VS. STATE OF MAHARASHTRA [LAWS(BOM)-2020-9-275] [REFERRED TO]
SUPRATIK GHOSH VS. ALIROMA CHEMICALS PVT. LTD. [LAWS(CAL)-2021-8-56] [REFERRED TO]


JUDGEMENT

R.F.NARIMAN, J. - (1.)THE facts giving rise to the present appeal are as follows. The appellant is engaged in ship breaking activity at Alang Ship Breaking Yard. The appellant imported a vessel, namely, M.V. Olinda, for the purpose of breaking the same, and filed a Bill of Entry when the vessel was imported on 7.2.1992. It declared in the said Bill of Entry that the Light Displacement Tonnage of the vessel was 7009 metric tons. On 19.2.1992, the appellant was informed by the Superintendent of Customs and Central Excise Alang that the Light Displacement Tonnage of the ship is actually 8570 tons and that customs duty was to be levied on this tonnage. On 3.3.1992, the appellant cleared the vessel on payment of customs duty on the basis of 7009 metric tons and executed a bank guarantee for Rs.19,90,275/ - being the difference in customs duty on 1561 metric tons. On 25.3.1992, the Collector of Customs, Rajkot, directed the Assistant Collector, Bhavnagar to encash the bank guarantee furnished by the appellant. On 2.4.1992, the Superintendent of Customs and Central Excise sent a letter to the appellant communicating the decision of the Collector, as aforesaid. The bank guarantee was duly encashed on 3.4.1992. After protesting against the said illegal action of the Department in encashing the bank guarantee, the appellant preferred an appeal against the Superintendent's letter dated 2.4.1992 and the Collector's order dated 25.3.1992 before CEGAT. On 23.6.1998, the Appellate Tribunal allowed the appeal and set aside the order of the Collector dated 25.3.1992. In the year 2000, the Department preferred an appeal before this Court. On 12.3.2003, this Court allowed the appeal holding:
"This appeal is against a judgment dated 23.6.1998 passed by the Customs, Excise And Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai.

Facts briefly stated are that the respondent filed a Bill of Entry in respect of ship M.V. Olinda imported by them for purposes of breaking. The respondent showed the light displacement tonnage (LDT) as 7009 metric tons. This declaration was not accepted by the Superintendent of Customs and Central Excise. The respondent, thus, approached the Assistant Collector. The question was how LDT was to be calculated. It appears that between the Assistant Collector and the Collector there was some internal correspondence on this aspect. The Collector took a policy decision on how LDT was to be calculated. The Collector conveyed this decision to the Assistant Collector by his letter dated 25.3.1992. Pursuant thereto the Superintendent of Customs and Central Excise passed an order dated 2nd April, 1992 in respect of vessel M.V. "Olinda". Of course the order dated 2nd April, 1992 is based on the decision of the Collector. However, the order remains that of the Superintendent of Customs and Central Excise.

The respondent filed an appeal directly before CEGAT. CEGAT has disposed of this appeal by the impugned order. CEGAT negatived a contention that the appeal was not maintainable before them on the basis that the Superintendent's order is nothing more than a communication of the order passed by the Collector (Appeals). CEGAT held that the appeal was in fact against the Collector's order.

In our view, the reasoning of CEGAT cannot be sustained. The decision taken by the Collector was not taken in his capacity as Collector (Appeals). Also the order by which respondent is aggrieved is the order passed by the Superintendent. An appeal against that order has to be filed before the Commissioner (Appeals) under Section 128. By virtue of Section 129 -A, CEGAT has no jurisdiction to entertain such an appeal.

It is clear that the impugned order is passed without any jurisdiction. Therefore, it cannot be sustained. We, thus, set aside the order. The appeal is accordingly allowed. There will be no order as to costs.

We clarify that we have not gone into the merits of the matter and that it will be open to the respondent to adopt such remedy as they may be advised, if in law they are entitled to do so."

(2.)AFTER this judgment, on 23.5.2003, the appellant filed an appeal before the Commissioner (Appeals) against the order passed by the Superintendent, Customs dated 2.4.1992. On 4.8.2003, an application to condone delay in filing the appeal was made in the following terms:
"As appeal against the order of the Supdt. of Customs was filed by us within 60 days of the receipt of the certified true copy of the judgment of the Hon'ble Supreme Court. It is our respectful submission that since the appeal was filed by us before the correct forum with due dispatch after receipt of the Supreme Court's judgment, there has been no delay in filing the appeal. It is well settled now that the time taken for pursuing a remedy before another appellate Forum is to be excluded for the purpose of computing the period for filing an appeal. (Union Carbide India Ltd. Vs. CC,1998 77 ECR 376, Karnataka Minerals and Mfg. Co. Ltd. Vs. CCE,1998 101 ELT 627)."

(3.)BY an order dated 27.10.2003, the Commissioner of Customs (Appeals) dismissed the appeal on the ground of delay stating that the appeal had been filed way beyond the period of 60 days plus 30 days provided for in Section 128 of the Customs Act. Against this order, CESTAT dismissed the appeal of the appellant stating that the Commissioner (Appeals) had no power to condone delay beyond the period specified in Section 128.
Shri Viswanathan, learned senior advocate appearing on behalf of the appellant argued before us that the entire period starting from 25.3.1992 up till 12.3.2003 ought to be excluded by applying Section 14 of the Limitation Act. According to him, Section 14 of the Limitation Act would apply to exclude this period from the period of 90 days allowed in filing an appeal filed to the Collector (Appeals) inasmuch as vide Section 29 (2) of the Limitation Act Section 14 of the Limitation Act would also apply to Tribunals set up under special or local Acts. According to him, the entire period with which he was prosecuting, with due diligence, the abortive appeal filed before CEGAT should be excluded, which would include the period even prior to 22.6.1992 when the abortive appeal was filed. As an alternative submission, on the assumption that Section 14 applied only to Courts and not to Tribunals, he submitted that the principle of Section 14 would then apply. According to him, Section 128 of the Customs Act before its amendment in 2001 would be attracted on the facts of this case giving him a period of 90 days plus an extended period of a further period of 90 days within which the present appeal could be filed. This being the case, on an application of Section 14, the appeal would be filed with no delay at all even if the period from 3.4.1992 to 22.6.1992 and 12.3.2003 to 23.5.2003 is to be taken into account, as that would be less than 180 days given to file the appeal under the old Section 128. He cited a number of authorities which we will deal with in the course of this judgment in support of all the aforesaid propositions.

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