2008 (1) TMI 688 - AT - Central Excise

Appeal to Appellate Tribunal - Limitation - Delay in filing appeal - Order - Adjudication Order

Summary

Issues Involved:
1. Valid service of order-in-original under Section 37C of the Central Excise Act.
2. Compliance with the procedure for service under Section 37C.
3. Bar on limitation for filing appeals.
4. Condonation of delay in filing appeals due to lack of proper opportunity of hearing.

Analysis:

Issue 1: Valid service of order-in-original under Section 37C of the Central Excise Act:
The appellant argued that the appeals were not time-barred as there was no valid service of the order-in-original as per Section 37C. The counsel contended that the Department affixed a copy of the order without following the prescribed procedure for service. The appellant relied on a decision of the Tribunal in a similar case and emphasized the importance of proper service to initiate the appeal process.

Issue 2: Compliance with the procedure for service under Section 37C:
The Department argued that there was proof of valid service as per the procedure outlined in Section 37C. It was highlighted that the dispatch sent by registered post was returned due to the factory being closed, indicating compliance with clause (a) of Section 37C. The Department maintained that after fulfilling the requirements of clause (a), the procedure under clause (b) was followed, and the copy of the order was affixed. This argument was put forth to assert that the appeal was indeed time-barred.

Issue 3: Bar on limitation for filing appeals:
The Tribunal reviewed the decision in a similar case and noted the requirement of proof of delivery for valid service. It was acknowledged that although the dispatch was returned without an 'acknowledgement due' card, there was sufficient compliance with clause (a) of Section 37C. Consequently, the appeals were considered time-barred as they were not filed within 90 days of the service of the adjudication order.

Issue 4: Condonation of delay in filing appeals due to lack of proper opportunity of hearing:
The appellant sought condonation of delay in filing the appeals, citing reasons such as the factory closure, pending proceedings before the BIFR, and challenges in presenting their case. The Department argued that the appellant had participated in the hearing through an advocate and had filed replies, indicating proper opportunity of hearing. However, upon examining the case history, the Tribunal found that the orders were passed without adequately considering the appellant's case due to various circumstances leading to a lack of proper representation. In the interest of justice, the Tribunal decided to condone the delay and allow the application for further consideration.

In conclusion, the Tribunal granted the condonation of delay and scheduled the matter for a hearing, directing that no coercive action be taken for recovery of dues until the next hearing date.