2014 (2) TMI 1097 - HC - Central Excise

Whether in the facts and circumstances of the case there can be a deemed service of the order on the appellant merely because it was sent under registered cover and no acknowledgment was received more so than there was a specific rebuttal in the form of affidavit filed by the appellant - Denial of CENVAT Credit - Held that - since the appellant was heard through its representative by the Commissioner (Appeals) after which the appellate order was passed on 23 November 2009, the appellant ought to have checked up with the office of the Commissioner (Appeals), if the order was not received. This in our view, begs the question of when the order of the Commissioner (Appeals) was communicated. Once the legislature has stipulated that the period of limitation under Section 35B (3) commences only upon the communication of the order which is sought to be appealed against, the Tribunal ought to have applied its mind to precisely when the order under appeal was communicated. Tribunal was not justified in dismissing the appeal. Moreover, if an appeal is not filed within the period of three months, the Tribunal has the power to condone the delay under Sub section 5 of Section 35B if sufficient cause is shown. The question of condonation would of course, arise only, when the Tribunal comes to the conclusion that the appeal was not filed within three months from the date of communication of the order. - appropriate order to pass in the appeal is to quash and set aside the order of the Tribunal dated 24 September 2013 and to restore the proceedings back to the Tribunal for consideration afresh - Decided in favour of assessee.

Summary

Issues:
Appeal under Section 35G against CESTAT order on limitation.

Detailed Analysis:
The appeal was filed under Section 35G of the Central Excise Act, 1944 against a CESTAT order dismissing an appeal on the ground of limitation. The primary question for disposal was whether there could be a deemed service of the order on the appellant merely because it was sent under registered cover without acknowledgment and a specific rebuttal was filed by the appellant.

The case involved a notice issued in December 2008 regarding Cenvat Credit, leading to an order of adjudication in March 2009 confirming the demand and imposing a penalty. Appeals were filed but dismissed by the Commissioner (Appeals) in 2009 and 2010. The appellant's Director appealed to the CESTAT, which allowed the appeal. However, the appellant was informed of the decision only in 2010 after inquiring about the unserved order.

The Tribunal's decision was based on the communication date of the order, crucial for the limitation period under Section 35B(3). The Tribunal held that the appellant should have verified the order's receipt, but the focus should have been on when the order was communicated. The Tribunal's reliance on a letter regarding the order's receipt was deemed insufficient as the actual receipt date was not confirmed.

The High Court opined that the Tribunal erred in dismissing the appeal without verifying the actual receipt date of the order. The Tribunal should have considered condoning the delay under Section 35B(5) if the appeal was not filed within three months from the communication date. The Court set aside the Tribunal's order and remanded the case for reconsideration on whether the order was communicated on the specified date.

In conclusion, the High Court quashed the Tribunal's order and directed a fresh consideration. The appellant was given the option to seek condonation of delay. The appeal was disposed of accordingly, addressing the legal question raised in the case.