1999 (11) TMI 822 - AT - Central Excise

Summary

Issues: Delay in filing appeal, Receipt of impugned order, Duty of department to supply copy

The judgment deals with a case where the appellant filed a COD application to condone the delay in filing the appeal from the date of issuance of the order. The appellant argued that there was no actual delay as the appeal was filed within three months from the actual receipt of the impugned order, despite it being passed on 27-10-1998 and despatched on 10-12-1998. The appellant claimed they only received the order on 10-9-1999 from a co-noticee after multiple unsuccessful attempts to obtain a copy from the Commissioner. The Department argued that the order was despatched on 14-12-1998, and as per the records, there is a presumption that the appellant received it. The appellant contended that without a postal receipt showing actual despatch, the order might not have been received due to possible address errors. The Tribunal noted that the appellant had promptly taken up the matter with the adjudicating authority upon learning about the order and had made repeated requests for a copy. The Tribunal found that the appellant received the order on 10-9-1999 and filed the appeal within ten days, within the three-month period from the actual receipt of the order, thus condoning any delay in filing the appeal. The Tribunal emphasized the duty of the department to reply to the appellant's letters and supply a copy of the order, which was not fulfilled, leading the appellant to seek the order from a co-noticee for the appeal to the Higher Appellate Forum.

In this judgment, the primary issue was the delay in filing the appeal, which the appellant sought to condone by arguing that the appeal was filed within the three-month period from the actual receipt of the impugned order. The appellant's representative contended that despite the order being passed on 27-10-1998 and despatched on 10-12-1998, they only received the order on 10-9-1999 from a co-noticee after multiple unsuccessful attempts to obtain a copy from the Commissioner. The Department, however, argued that the order was despatched on 14-12-1998, and there was a presumption under the law that the appellant received it. The Tribunal considered the evidence presented by both parties and found that the appellant had promptly taken steps upon learning about the order, including making requests for a copy, which were not fulfilled by the department. The Tribunal concluded that the delay in filing the appeal was justified given the circumstances and the appellant's efforts to obtain the order for filing the appeal within the prescribed period.

The judgment also addressed the duty of the department to supply a copy of the order to the appellant upon request. The appellant had written multiple letters to the Commissioner requesting a copy of the order to exercise their right to appeal to the Tribunal. Despite the appellant's efforts and stamped receipts showing the receipt of the letters by the department, no response was received, leading the appellant to obtain a copy from a co-noticee. The Tribunal emphasized that the department should have replied to the appellant's letters and supplied a copy of the order after following the due procedure for obtaining attested copies. The failure of the department to fulfill this duty resulted in the appellant having to procure the order from a co-noticee to challenge it before the Higher Appellate Forum. The Tribunal considered these circumstances in condoning any delay in filing the appeal and disposing of the miscellaneous application accordingly.