2012 (11) TMI 816 - AT - Central Excise

Condonation of delay of 140 days in filing appeal - order-in-appeal was passed on 14-1-2011 - factory was taken over by the bank for recovery of certain dues and was in the possession of the bank as is clear from the documentary evidence produced on record Held that - Limitation period expired around 18-4-2011. Before the expiry of the said period, the appellant entered into correspondence with the office of Commissioner (Appeals) for supply of the copy of order - fact itself reflects upon the non-receipt of the order by the appellant - there was still a period of one month available to appellant to file the appeal and if the Commissioner (Appeals) would have served a copy of the order immediately to the appellant on 17-3-2011, the appellant could have filed appeal well in time - date of communication of the order should be taken as 19-7-2011 when the same was subsequently supplied by the office of Commissioner (Appeals) - COD allowed

Summary

Issues:
Delay in filing the appeal.

Analysis:
The case involved an application to condone a delay of 140 days in filing the appeal. The order-in-appeal was passed on 14-1-2011, with the Revenue claiming it was sent by speed post and received on 18-1-2011. However, the appellant argued that their factory was under bank possession, evidenced by documents, and the order might have been received by the bank. The appellant had requested a copy of the order on 17-3-2011 and again on 28-4-2011, indicating non-receipt. The limitation period expired around 18-4-2011, but the appellant had engaged in correspondence with the office of Commissioner (Appeals) before that, showing non-receipt and a request for the order. The Tribunal noted that if the order had been promptly served on 17-3-2011, the appeal could have been filed within time.

The Tribunal considered the circumstances and decided to condone the delay in filing the appeal. They accepted that the date of communication of the order should be considered as 19-7-2011 when it was supplied by the office of Commissioner (Appeals). Consequently, the delay was condoned, and the stay petition was scheduled for a hearing on 7-3-2012. The decision was made after a thorough examination of the facts presented, including the appellant's efforts to obtain the order and the impact of the delay caused by non-receipt and lack of timely response from the Revenue.