2011 (10) TMI 346

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....questions of law for our consideration:   "Whether in the facts and circumstances of the case the Tribunal has committed substantial error of law in dismissing appeal of the revenue as not maintainable on the ground of alleged procedural irregularity?"   Briefly stated facts are that to challenge the judgement of the Appellate Commissioner, the department preferred appeal before the Customs Excise and Service and Service Tax Appellate Tribunal. Such appeal was dismissed by the impugned order dated 27.4.2010 holding that appeal was not competent. Relevant portion of the order of the Tribunal, reads as under:   "2. The learned advocate for the respondent raised a preliminary objection before the learned DR would start ....

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.... maintainable and accordingly rejected."   Counsel for the appellant submitted that the Tribunal gravely erred in dismissing the appeal on the ground that instead of the Committee of Commissioners, the Commissioner Surat alone took the decision to file appeal. He submitted that there was substantial amount of duty demand which got terminated on account of disposal of the appeal on such technical ground. Counsel further submitted that the Tribunal relied on decision of Bombay Tribunal in case of Commissioner of Customs (General) v. Cannon Shipping Co. Pvt. Ltd reported in 2010(250) ELT 347(Bom.) and in case of Commissioner of Central Excise v. Coromandel Fertilizers Ltd. reported in 2007(217) E.L.T. 269(Tri. Mumbai). Both the judgeme....

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....That was not done. Even otherwise, if at the relevant time, the Commissioner, Belapur was holding additional charge of Central Excise, Raigad, there was no defect. Our attention is drawn to the earlier order which was relied upon by the learned Tribunal. Law is settled that procedure should not be allowed to come in the way of justice. It is not meant to trip justice. In the instant case, the very defect, if any was procedural. In such cases, opportunities must be given to the parties to cure such defects.   5. Considering the above, the impugned order is set aside. Appeal is restored to the file of CESTAT. It will hear the appeal on merits including all the contentions raised by the respondents including on limitation."   W....