2014 (7) TMI 1230 - AT - Central Excise

Condonation of delay - maintainability of appeal - Held that - date of communication of the copy of the adjudication order will be construed as 2-2-2007 (communicated under the cover of the letter of Range Superintendent). Since the appeal has been filed on 2-4-2007, the same is not barred by limitation of time - matter on remand to the Commissioner (Appeals) for passing reasoned and speaking order - appeal allowed by way of remand.

Summary

Issues:
Dismissal of appeals for being filed beyond the condonable period prescribed under the statute.

Analysis:
The appellants filed appeals before the Commissioner (Appeals) which were dismissed as being beyond the condonable period. The appellants claimed non-receipt of adjudication orders due to factory closure, and only became aware of the orders through a letter from the Superintendent. The Commissioner (Appeals) relied on a mahazar drawn on a specific date to determine the receipt of the order. The appellant argued that the order was never served, citing the Tribunal's decision in a similar case. The Departmental Representative supported the Commissioner's findings.

Upon review, the Tribunal found that due to factory closure, the adjudication order was not served on the appellant, leading to a delay in filing the appeal. The appeals were filed within the prescribed time limit as per Section 35A of the Central Excise Act, 1944, upon receiving a certified copy of the order. The Tribunal rejected the reliance on the mahazar date for determining the appeal's limitation period. The mahazar indicated that the appellant's unit was non-existent at the site where the order was affixed, and the present address was unknown. The Tribunal concluded that Section 37C did not apply as the order was not served at the factory or residence. Referring to the Nalin Chemicals case, the Tribunal held that the date of communication of the order was when it was received by the appellant, not the affixation date. Therefore, the appeal was not time-barred.

The Tribunal allowed the appeal, remanding it to the Commissioner (Appeals) for a reasoned order after providing the appellant with a personal hearing.