2011 (1) TMI 718 - AT - Central Excise

Application for stay - Time limitation - It is the contention of the appellant that the appeal in question is within the time-limit from this date i.e. 26-2-2010 - Learned counsel submits that there is no copy of the acknowledgment due available on record and relying on the judgment cited supra submit that in the absence of proof of delivery the order cannot be treated as served - Punjab & Haryana High Court in the case of Commissioner of Central Excise Ludhiana v. Mohan Bottling Co. (P) Ltd. (2010 -TMI - 77008 - PUNJAB & HARYANA HIGH COURT) where it was held that sending order at correct address by registered post is sufficient for the department - Appeal is dismissed

Summary

Issues:
- Maintainability of the appeal filed beyond the time-limit prescribed under the statute.
- Validity of service of the order-in-appeal under Section 37C of the Central Excise Act, 1944.

Issue 1: Maintainability of the appeal filed beyond the time-limit:
The appellant, M/s. Cravina Fabrics Pvt. Ltd., filed a stay application in appeal No. E/869/2010, contending that the appeal was within the time-limit from the date they received the order-in-appeal on 26-2-2010. The learned SDR raised a preliminary objection on the appeal's maintainability, stating that the appeal was filed on 17-5-2010, beyond the time-limit prescribed under the Central Excise Act. The appellant argued that due to a change in management and company name to M/s. Amidev Agro Care Pvt. Ltd., the order was dispatched to the correct address as per the consultant's submission to the department. The appellant relied on the Tribunal's Larger Bench decision and Gujarat High Court judgments regarding the requirement of proof of actual delivery for valid service.

Issue 2: Validity of service of the order-in-appeal under Section 37C:
The learned counsel for the appellant emphasized Section 37C of the Central Excise Act, 1944, which prescribes the procedure for service of decisions and orders. The appellant argued that the order-in-appeal was sent by speed post to the correct address of M/s. Cravina Fabrics Pvt. Ltd., but there was no proof of delivery available on record. The appellant cited previous judgments to support the argument that in the absence of proof of delivery, the order cannot be considered as served. The Tribunal discussed the case law and distinguished the decision in the Margra Industries Ltd. case, holding that sending the order by registered post to the correct address is sufficient for the department. Relying on the decision in the Classic Marbles case and the Punjab & Haryana High Court judgment, the Tribunal concluded that the order-in-appeal was validly served, and hence, the appeal was dismissed as time-barred.

In conclusion, the Tribunal dismissed the appeal and stay application as time-barred, emphasizing compliance with the service requirements under Section 37C of the Central Excise Act, 1944.