2012 (11) TMI 563 - AT - Central Excise

Dismissal of appeal as barred by limitation - Held that - Commissioner (Appeals) dismissed the appeal drawing a presumption that order in original sent to the assessee through speed post must have been delivered to the appellant as it was not received back undelivered. On perusal of the photocopy of postal receipt pertaining to the dispatch of order in original it is found that it does not contain complete address of the appellant. That being the case, it cannot be concluded that the order in original was actually sent at the correct address of the appellant - remand the matter back to the Commissioner (Appeals) to decide afresh.

Summary

Issues:
1. Appeal against dismissal on grounds of limitation.
2. Validity of presumption of service through speed post.
3. Recognition of modes of service under Section 37C of the Central Excise Act, 1944.

Analysis:
1. The appeal was filed against the dismissal on grounds of limitation based on the order in original dated 29.1.2010. The Commissioner (Appeals) dismissed the appeal stating it was time-barred as it was filed sixty days after the presumed service of the adjudication order. The appellant argued that they received the order on 5.5.2011 and filed the appeal within thirty days from that date.

2. The Department claimed that the order in original was dispatched via speed post on 2nd February 2010, and since it was not returned undelivered, there was a legal presumption of service. The appellant contested this, stating they did not receive the order and that speed post is not a recognized mode of service under Section 37C of the Central Excise Act, 1944.

3. The appellant's advocate argued that the Commissioner (Appeals) erred in presuming service through speed post, emphasizing that there was no evidence of the order being dispatched to the correct address. The Commissioner (Appeals) failed to establish that the order was sent to the correct address, as the postal receipt did not contain the complete address of the appellant. The recognized mode of service under Section 37C is registered A.D. post, not speed post.

4. After considering the arguments and reviewing the record, the judges found that the Commissioner (Appeals) was unjustified in presuming the order was delivered, especially without evidence of the correct address. They concluded that the order should be set aside, remanding the matter back to the Commissioner (Appeals) for a hearing on the merits and a decision after giving due hearing to the appellant.

This detailed analysis of the judgment highlights the issues raised, the arguments presented by both parties, and the ultimate decision reached by the Appellate Tribunal CESTAT NEW DELHI.