2014 (8) TMI 673 - AT - Service Tax

Condonation of delay - Cenvat credit - penalty under Rule 15 of the Cenvat Credit Rules, 2004 readwith Section 11AC - whether the appellant had received the order-in-original dated 16/03/12 in the month of March itself or as contended by them, they received this order on 18/06/12, when as per the endorsement on the last page of the order, a Xerox copy of the same was supplied to them - Held that - It is seen that on the same day i.e. on 16/03/12, the Jurisdictional Range Officer had also addressed a letter to the appellant directing them to deposit forthwith the duty demand of ₹ 20,42,197/- confirmed against the appellant alongwith interest and penalty of equal amount imposed on them, but he did not endorse the copy of the adjudication order. Since on that day, the appellant had not received the order, after waiting for sometime, they addressed a letter on 13/04/12 to the Range office informing him that the order had not been received and with a request to supply the same. Moreover, in this case when on 13/04/12, the appellant had informed the Department that the order had not been received and if the order had been supplied forthwith, the appellant would have been able to file the appeal within time, but this was not done. In view of this, I hold that the date of receipt has to be treated as 18/06/12 and if the limitation period is counted from this date, the appeal has been filed within time. In view of this, the impugned order dismissing the appeal as time barred is not sustainable. The same is set aside and the matter is remanded to the Commissioner (Appeals) for decision on merits - Decided in favour of assessee.

Summary

Issues:
1. Timeliness of filing the appeal against the order-in-original dated 16/03/12.
2. Compliance with the provisions of Section 37C of the Central Excise Act regarding the mode of service of orders.

Analysis:

Issue 1: Timeliness of filing the appeal against the order-in-original dated 16/03/12
The case involved a dispute regarding the timeliness of filing an appeal against an order-in-original dated 16/03/12. The Additional Commissioner confirmed a Cenvat credit duty demand against the appellant, who claimed they did not receive the order until 18/06/12. The Commissioner (Appeals) dismissed the appeal as time-barred, citing the filing date of 17/08/12, beyond the 30-day limit. The Tribunal remanded the matter for denovo decision. The appellant argued that the order was not received promptly and that the delay in filing was due to the delayed receipt of the order. The Tribunal held that the date of receipt should be considered as 18/06/12, allowing the appeal to be considered within the time limit. The impugned order was set aside, and the matter was remanded for a decision on merits.

Issue 2: Compliance with the provisions of Section 37C of the Central Excise Act
The appellant contended that the order-in-original was dispatched by speed post, not by registered post with acknowledgment due (RPAD), as required by Section 37C. The appellant cited judgments by the Bombay High Court and Punjab & Haryana High Court, emphasizing the need for strict compliance with the prescribed mode of service. The Department argued that sending the order by speed post was sufficient, relying on judgments supporting the equivalence of registered post and speed post. The Tribunal considered the conflicting views but ultimately followed the decisions of the Bombay High Court and Punjab & Haryana High Court, emphasizing adherence to the prescribed mode of service. The Tribunal found that the appellant's communication regarding non-receipt of the order on 13/04/12 should have prompted immediate supply of the order, which was only provided on 18/06/12. Therefore, the Tribunal concluded that the appeal was filed within time if the limitation period was counted from 18/06/12.

This detailed analysis highlights the key arguments, legal interpretations, and the Tribunal's decision on the issues raised in the legal judgment.