2009 (5) TMI 763 - AT - Central Excise

Service of order - Appeal to Commissioner (Appeals) - Held that - Section 37C of Central Excise Act, 1944 provides procedure for service of decisions, orders, summons etc. The department is required to send the order by registered post with acknowledgement due and only when this option fails to result in service then other options are required to be exercised. There is no evidence on record to show that department had sent the order to the appellant by registered post. In the absence of any evidence to show that order has been properly served, contention of the appellant that order was received by them on 22-5-2008 is to be accepted. The matter is remanded to Commissioner (Appeals) to decide the matter on merits treating the same as within time limit.

Summary

Issues: Appeal rejection on limitation period grounds

Analysis:
The appeal filed by the appellant was rejected by the Commissioner (Appeals) on the basis of being filed beyond the prescribed limitation period. The appellant had surrendered their registration on 14-1-2004, and a show cause notice was issued on 7-5-2004. However, they only became aware of the Order in Original after sending a letter to the department on 19-5-2008. The appellant claimed that they did not know the person who received the order on 22-2-2008. The advocate argued that the date of receipt should be considered as 22-5-2008, the date the copy was sent to them. The department contended that they had fulfilled their obligation by serving the order and implied that the appellant should know the recipient.

Analysis:
The Tribunal considered the provisions of Section 37C of the Central Excise Act, 1944, which governs the procedure for service of decisions, orders, summons, etc. It mandates sending the order by registered post with acknowledgment due, and only if this fails, other options can be explored. In this case, there was no evidence to prove that the department had sent the order to the appellant by registered post. Therefore, in the absence of such evidence, the Tribunal accepted the appellant's claim that they received the order on 22-5-2008. Since the Commissioner did not assess the matter on merits and dismissed the appeal solely on the grounds of limitation, the Tribunal remanded the case back to the Commissioner (Appeals) to decide the matter on its merits, treating it as within the time limit.