2015 (6) TMI 1036 - AT - Central Excise

Period of limitation - Appeal filed beyond condonable period of delay - Appellant contended that order in original dated 23.12.2010 was received on 16.1.2012 and appeal was filed on 27.3.2012 and hence was filed within the stipulated time - Held that - order-in-original is deemed to have been served on the appellant by virtue of having been sent by registered post A.D. on 23.12.2010. The appellant had not submitted any evidence leave alone cogent evidence to rebut the presumption of deemed service. Therefore the appeal filed before the Commissioner (Appeals) was clearly beyond even the statutorily condonable period and therefore the Commissioner (Appeals) was right to conclude that he had no option but to reject the appeal as time barred without going into the merits of the case. - Decided against the appellant

Summary

Issues:
1. Appeal against dismissal of appeal as time-barred.
2. Deemed service of order-in-original.
3. Requirement of pre-deposit.

Analysis:
1. The appellant filed an appeal against the dismissal of their appeal as time-barred by the Commissioner (Appeals). The appellant argued that the appeal was filed within the stipulated time as the order-in-original was received on 16.1.2012, and the appeal was filed on 27.3.2012. However, it was found that the order-in-original was sent to the correct postal address of the appellant by registered post A.D. on 23.12.2010. The Tribunal referred to Section 37(C)(2) of the Central Excise Act, 1944, which states that a decision or order shall be deemed to have been served on the date it is tendered or delivered by post. The appellant failed to provide any evidence to rebut the presumption of deemed service. Citing a previous case, the Tribunal emphasized that sending the order to the correct address by registered post is sufficient compliance with the Act. Since the appellant did not submit any evidence to prove that the order was not served upon them, the Commissioner (Appeals) was correct in rejecting the appeal as time-barred.

2. The Tribunal waived the requirement of pre-deposit as there was no representation on behalf of the appellant during the hearing. With the consent of the Departmental Representative (D.R.), the Tribunal proceeded to decide the appeal on merit without the need for pre-deposit. This decision allowed the appeal to be considered without the appellant having to make any pre-deposit.

3. Considering the above analysis, the Tribunal found no infirmity in the order-in-appeal and rejected the appeal. The decision was based on the fact that the appeal was filed beyond the condonable period due to the deemed service of the order-in-original, which was sent to the correct address of the appellant. The Tribunal upheld the Commissioner (Appeals)'s decision to dismiss the appeal as time-barred without delving into the merits of the case.