2003 (7) TMI 520 - AT - Central Excise

Summary

Issues: Appeal against dismissal of appeal as time-barred.

Analysis:
1. The appellant filed an appeal against the Order-in-Appeal dated 8-11-2002, which dismissed the appeal against the Order-in-Original as time-barred.
2. The appellant claimed that they did not receive a copy of the order nor did they refuse it when sent by post. They only became aware of the order when they received a notice for penalty recovery. The appeal was filed within time from the date they received the copy on 31-5-2002.
3. The JDR contended that since the appellant refused to receive the order sent by post, it constituted proper service of notice, making the appeal time-barred.
4. The impugned order details the timeline of the order's pronouncement, dispatch, and delivery to the appellant. The order was pronounced on 20-12-2001, dispatched on 15-2-2002, and sent by registered post on 18-2-2002. The postal remarks of 'not met' and 'refused' were dated 20-2-2002 and 21-2-2002, respectively. The appellant applied for a copy on 15-5-2002, received it on 31-5-2002, and filed the appeal on 30-7-2002. The Commissioner computed the limitation period from 21-2-2002, the date of the postal remark 'refused'.
5. The Tribunal disagreed with the Commissioner's view, noting the lack of evidence to suggest the appellant's motive for not filing the appeal in time if they had received the order. There was no certificate from the postal authority confirming the postman's report of refusal. The appellant's subsequent application for a copy through counsel on 15-5-2002 contradicted the alleged refusal.
6. Emphasizing that technicalities should not impede justice, the Tribunal set aside the Commissioner's order and remanded the matter for a hearing on merits, instructing the Commissioner to decide the case after affording the appellant an opportunity for a hearing.
7. The appeal was disposed of by way of remand, directing a fresh consideration of the case on its merits.