G.P. Josekuttan vs CESTAT

V. Chitambaresh, J.—No litigant shall suffer for the mistake of court is an adage which has withstood the test of time. Ext. P1 order imposing service tax and penalty erroneously stated that an appeal would lie therefrom to the Customs, Excise and Service Tax Appellate Tribunal. The petitioner cannot therefore be faulted with for filing Ext. P2 appeal with the tribunal though in fact such appeal would lie to the second respondent Commissioner only. The first respondent-tribunal has rejected the appeal as not maintainable notwithstanding the fervent plea of the petitioner to return the memorandum for re-presentation to the second respondent Commissioner. Ext. P10 order passed in this regard inter alia reads as follows:

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Seemingly, he blindly chose to go by the defective preamble to the order-in-original rather than by the provisions of the statute. Even after receipt of the corrected preamble to the order-in-original, the appellate did not care to take corrective measures. He proceeded to file the present appeal. At the same time, we have also found palpable carelessness on the part of the Registry which ought to have noted that an appeal against a Joint Commissioner''s order was not appealable to this Tribunal and, accordingly, should have returned the memorandum of the appeal and connected papers forthwith. Had the Registry done so, perhaps, the appellant would have taken corrective action and sought justice from the Commissioner (Appeals). Unfortunately, in this case, this also did not come through. In this connection, it is noteworthy that the Joint Commissioner was cited as respondent in the appeal and the designation of the authority passing the impugned order was shown as Joint Commissioner. The very cause Title of the memorandum of the appeal was enough for the Registry to return the appeal to the appellant. In the totality of all these facts and circumstances, the appellant is still before the Tribunal with an appeal which is not maintainable".

I feel that the tribunal has adopted a hypertechnical view forgetting the fact that every endeavour should be made to dispose of the lis on merits. The respondents contend that the petitioner did receive the corrected copy of Ext. P1 order on 2-6-2011 even before Ext. P2 appeal was filed. But the petitioner has a case that he did not notice the correction carried out in the preamble and that he was carried away by Ext. P1 order as it originally stood. Ext. P2 appeal if reckoned from the date of service of corrected order would be very much in time before the second respondent Commissioner. It will be in the fitness of things if Ext. P2 appeal is returned to the petitioner for re-presentation to the second respondent Commissioner for disposal on merits. That would subserve the ends of justice and Ext. P10 order is quashed for this limited purpose under the circumstances.

The first respondent shall return Ext. P2 appeal to the petitioner within a period of one month from today. The petitioner shall re-present the appeal with the second respondent Commissioner within a period of two weeks therefrom. Every endeavour shall be made by the second respondent Commissioner to dispose of the appeal on merits within a period of three months after its preferment.

The petitioner shall produce a copy of the Writ Petition with the judgment before the second respondent for compliance. The Writ Petition is disposed of.