2012 (10) TMI 825 - AT - Central Excise

Rejection of appeal as time bar - Held that - The order was first issued under speed post and was received back to the Revenue with postal remarks that there is no firm at the given address. As such, even if the order would have been issued under registered post, the same would have came back with the same postal ground. It stands admitted by the appellant that they have closed their factory in the year 1999 and the proceedings against the appellant were initiated by way of issuance of show cause notice in April, 2006. The appellants never bothered to give complete new address for communication purpose. Thus finding favour with Revenue action having pasted the order on the factory gate on 5.12.07 for fulfilling the legal obligation placed upon them in terms of section 37C. The appellant had not made any averment to show that only first page of the order was pasted. Also it is seen that appellant having addressed a letter in December, 2007, for supply of copy of impugned order never further made any efforts to procure a copy immediately. He having came to know that order stand served upon them in December, 2007 and the appellant being aware that an appeal has to be filed within a period of 60 days from the date of receipt of order, made no further efforts for procurement of the order - as the Commissioner (Appeals) has no power to condone the delay beyond the period of 30 days he has rightly rejected it - against assessee.

Summary

Issues involved: Appeal rejection on the point of time bar due to service of impugned order, correct manner of serving the decision, compliance with Section 37C provisions, appellant's awareness of the order, delay in filing appeal, condonation of delay by Commissioner (Appeals).

Analysis:

1. The judgment deals with the rejection of an appeal on the point of time bar due to the service of the impugned order. The Commissioner (Appeals) rejected the appeal citing the date of the original order and the subsequent actions taken for serving the order. The appellant claimed that the order was not sent to them by registered post as stated by the Commissioner (Appeals) but was sent via speed post, which they argue does not comply with the provisions of Section 37C.

2. The appellant's advocate highlighted that the impugned order was sent via speed post and was returned undelivered, indicating that the service did not adhere to the requirements of Section 37C. The respondent argued that the order was pasted on the factory gate, and the appellant was aware of the order in December 2007 itself, even though they officially requested a certified copy later. The appellant contended that the revenue should have first exhausted the remedy under sub-clause A of clause (1) of Section 37C before resorting to sub-clause (b).

3. The judge noted that while Section 37C outlines a sequential manner for the service of orders, pasting of orders comes as a subsequent step after exhausting the initial service method. The appellant's awareness of the order in December 2007 was crucial, and the judge found that the revenue had fulfilled its legal obligation by pasting the order on the factory gate. The appellant's delay in taking further action after becoming aware of the order was also a significant factor considered.

4. The judgment emphasized the appellant's responsibility to be proactive in procuring the order and filing the appeal within the stipulated time frame. The judge referred to the Supreme Court decision in Singh Enterprises vs. CCE, Jamshedpur, which clarified the limitations on the Commissioner (Appeals) to condone delays beyond a specified period. As the appeal was filed beyond the condonable period, the Commissioner (Appeals) was justified in rejecting it as barred by limitation.

5. Ultimately, the judgment upheld the decision of the Commissioner (Appeals) to reject the appeals as barred by limitation. The judge concluded that the appellant's casual attitude and delayed actions contributed to the rejection of the appeals. The importance of timely filing appeals within the prescribed limits was underscored, and the legal provisions regarding condonation of delay were reaffirmed.

6. In conclusion, the judgment provides a detailed analysis of the issues surrounding the time bar for filing appeals, the correct manner of serving orders, and the responsibilities of appellants in procuring and filing appeals within the specified timelines. The decision underscores the significance of compliance with legal provisions and timely actions in the appellate process.