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2021 Supreme(Online)(KER) 2775
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 11TH DAY OF JUNE 2021 / 21ST JYAISHTA, 1943 WP(C) NO. 11848 OF 2021 PETITIONER:
THE KOLLAD SERVICE CO-OPERATIVE BANK LTD NO. 1830 KOLLAD P.O. 686 004, REPRESENTED BY ITS SECRETARY.
BY ADV C.A.JOJO RESPONDENTS:
1 THE COMMISSIONER OF CENTRAL TAX CENTRAL EXCISE AND CUSTOMS, C R BUILDING, I S PRESS ROAD, ERNAKULAM , KOCHI 682 018.
2 THE SUPERINTENDENT OF CENTRAL TAX AND CENTRAL EXCISE.
V PUBLISHERS BLDG, KOTTAYAM POST 686 001.
3 THE BRANCH MANAGER, DTDC EXPRESS LTD., KADUVAKULAM, KOTTAYAM BRANCH, KOLLAD P.O. PIN-686 004.
BY ADV C.A.JOJO OTHER PRESENT:
SREELAL WARRIER SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
J U D G M E N T
Petitioner has filed a statutory appeal against Ext.P1 order of adjudication. Petitioner submits that the appeal was filed in time. He would submit that Ext.P4 outward dispatch register of the Bank shows that the appeal was sent by courier on 15.02.2019. He would also submit that Ext.P3 shows that the pre- deposit was made on 14.02.2019. Ext.P5 shows that appeal was dispatched on 16.02.2019 and that it was delivered on 18.02.2019 at 12.36 hrs. The order passed by the appellate authority as per Ext.P7 takes the view that the appeal having been received only on 02.04.2019, the appeal was time barred as on that date.
2. Learned Senior Standing Counsel, appearing for the respondents, would submit that as per the records maintained by the department including the departments inward register, the appeal was received only on 02.04.2019. He would submit that therefore there is absolutely nothing wrong in Ext.P7 order as on the date of receipt the appeal was hopelessly time barred.
3. Learned Senior Standing Counsel also submits that the matter has any way been considered on merits as is evident from Ext.P7.
4. Considering the totality of the facts and circumstances of the case and taking note of Exts.P3 to P6, I am of the view that the petitioner cannot be faulted and it cannot be said that the appeal was filed only on 02.04.2019. The fact that the petitioner had made a pre-deposit on 14.02.2019 lends credence to its case that the appeal was dispatched by courier on 16.02.2019. Therefore, I must take the view that the appeal was filed on the date it was delivered which is shown in Ext.P6 to be 18.02.2019 in which case the appeal was filed in time.
Therefore I am inclined to set aside Ext.P7 order. As a result Ext.P2 appeal will stand restored to file. The appellate authority shall consider the appeal as if it was filed on time and hear and dispose of the same in accordance with law, after notice to the petitioner, within a period of 'three months' from the date of receipt of a copy of the judgment.
Sd/-
GOPINATH P., JUDGE
APPENDIX OF WP(C) 11848/2021 PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER-IN-ORIGINAL NO. 89/ST (AC)/DIV/2018-19 DTD.18.12.18. BY THE 2ND RESPONDENT.
EXHIBIT P2 A TRUE COPY OF THE APPEAL DATED
14.02.2019 BEFORE THE 1ST RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE CHALAN OF THE PRE DEPOSIT DATED 14.02.2015 ISSUED BY THE HDFC BANK LTD.
EXHIBIT P4 A TRUE COPY OF THE RELEVANT PAGE OF THE OUT WARD REGISTER DATED 15.02.2019.
EXHIBIT P5 A TRUE COPY OF THE CONSIGNMENT BOOKING SLIP DATED 16.02.2019.
EXHIBIT P6 A TRUE COPY OF THE CONSIGNMENT SHIPMENT TRACKING HISTORY WITH E-MAIL RECORDS DATED NIL.
EXHIBIT P7 A TRUE COPY OF THE ORDER-IN- APPEAL DIN-20201158XJ00005505 A2 ISSUED BY THE
1ST RESPONDENT DATED 19.11.2020.
EXHIBIT P8 A TRUE COPY OF THE PETITION FOR RECTIFICATION OF MISTAKE (ROM) FILED BEFORE THE 1ST RESPONDENT DATED
09.03.2021.
EXHIBIT P9 A TRUE COPY OF THE ORDER REJECTING ROM PETITION, ISSUED BY THE 1ST RESPONDENT DATED 12.03.2021.
