2014 (9) TMI 807 - AT - Central Excise

Maintainability of appeal before Commissioner (Appeal) - Determination of date of receipt of order in original - Bar of limitation - condonation of delay - Held that - There is no dispute that the Order-in-Original against which the appeal had been filed before the Commissioner (Appeals) had been dispatched by Registered AD and there is also no dispute about receipt order by the appellant. The dispute is only about the date of receipt. While according to the appellant, they received this order on 01.06.2000, according to the Department this order should be deem to have been received within one week from the date of dispatch which according to the Commissioner (Appeals) is the normal period of delivery of latter by the Postal Authority. In my view, this presumption of the Commissioner (Appeals) is totally incorrect and there is no base for the same. If an order or letter has been despatched by the Department to an assessee by Registered Post AD, in term of the provisions of Section 114 of the Indian Evidence Act, it can be presumed to have been received by the assessee, and if the assessee claims that he did not receive the order/letter, the burden of proof is on him. even if the date of receipt is assumed to be on 14.04.2000 i.e. within a week s time from the date of the order i.e. 07.04.2000, since the appeal had been filed on 14.09.2000, there would be delay of only two months which was within the condonation limitation and the Commissioner (Appeals) should have heard the appellant s plea for delay and should not have been dismissed the appeal as time barred on the ground that the period of delay is the beyond his power of condonation. - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Time limitation for filing appeal before Commissioner (Appeals)
2. Presumption of receipt date of order
3. Condonation of delay in filing appeal
4. Dismissal of appeal as time-barred

Analysis:

Issue 1: Time limitation for filing appeal before Commissioner (Appeals)
The appellant, a manufacturer of Hot Re-rolled products of Iron & Steel, received an Order-in-Original confirming duty demand and penalty. The Commissioner (Appeals) dismissed the appeal as time-barred, citing a delay of five months in filing the appeal. The appellant argued that the appeal was filed within the condonation limit as per the provisions of Section 35 of the Central Excise Act, 1994. The Commissioner (Appeals) failed to consider the provisions of the law during the dispute period. The appellant contended that the date of communication cannot be presumed to be one week from the date of dispatch, emphasizing the need for evidence to support such claims.

Issue 2: Presumption of receipt date of order
The main dispute revolved around the date of receipt of the Order-in-Original. The Commissioner (Appeals) presumed that the order was received within a week of dispatch, based on the normal period of delivery by Postal Authorities. However, the Tribunal found this presumption to be incorrect and baseless. The burden of proof lies with the appellant to show non-receipt of the order, but presumptions can only be made regarding receipt, not the specific date of receipt. The Department should provide evidence, such as an acknowledgment containing the date of receipt, to dispute the appellant's claim.

Issue 3: Condonation of delay in filing appeal
The Tribunal noted that the normal period of limitation for filing an appeal before the Commissioner (Appeals) was three months, extendable by another three months on showing sufficient cause. Even if the date of receipt was assumed to be within a week of the order, the delay in filing the appeal was only two months, well within the condonation limit. The Commissioner (Appeals) should have considered the appellant's plea for delay and not dismissed the appeal as time-barred beyond his power of condonation.

Issue 4: Dismissal of appeal as time-barred
Ultimately, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision. The Commissioner (Appeals) was directed to consider the appellant's plea for condonation of delay and decide the appeal on its merits. The Tribunal emphasized that the period of delay was within the Commissioner's power of condonation, and if the delay is condoned, the appeal should be decided on its substantive grounds. The appeal and stay application were disposed of accordingly.