2010 (5) TMI 456 - AT - Central Excise

condonation of delay limitation copy of order was received by the appellants, the same was misplaced and it was not traceable - appellants had already paid the entire duty amount and the interest payable thereon to the Department much prior to the disposal of the matter by the adjudicating authority - undisputed fact that they had also paid 25% of the total penalty amount leviable based on the duty liability - order nowhere discloses consideration of the matter on merits and the same has been dismissed merely on the bar of limitation - appellants had disclosed sufficient cause for condonation of delay in the matter and hence the impugned order on this ground itself cannot be sustained and is liable to be set aside

Summary

Issues:
Challenge to order dismissing appeal on the ground of limitation

Analysis:
The appellants contested an order confirming duty liability and imposing penalties, received on 30-1-2009, following a show cause notice issued on 22-8-2006. The appeal was filed on 17-4-2009, leading to a delay of 387 days from the original order dated 26-3-2008. The appellants argued that the delay was only 18 days from the date they received the order. The Commissioner (Appeals) dismissed the appeal solely based on the bar of limitation.

The appellants claimed they were unaware of the order until they received a notice on 30-1-2009, demanding penalty payment. They argued that the delay in filing the appeal was due to the time taken to prepare the appeal after receiving the order. The Commissioner (Appeals) overlooked this aspect and focused solely on the date of the order and the filing of the appeal.

The appellants relied on the decision in Margra Industries Ltd. v. Commissioner of Customs, New Delhi, which emphasized that dispatching an order by speed post or registered post does not constitute valid service unless actual delivery is proven. The Department, however, presented evidence suggesting that the order was dispatched and presumed to be received by the appellants.

The Tribunal discussed the conflicting decisions in Margra Industries and S.A. Plywood Industries cases regarding the validity of service through speed post. In this case, although records indicated the order was dispatched to the appellants, they claimed it was misplaced and only retrieved on 30-1-2009, leading to the delayed appeal filing. The Tribunal found that the appellants had a valid reason for the delay and remanded the matter to the Commissioner (Appeals) for consideration on merits.

The impugned order was set aside as it lacked consideration on merits and was solely based on the limitation issue. The Tribunal held that the appellants had shown sufficient cause for the delay, necessitating a review of the appeal on its merits. Consequently, the appeal was allowed, and the matter was remanded for further consideration.