2014 (10) TMI 334 - AT - Central Excise

Condonation of delay - appeals have been rejected on the ground that they were filed beyond the period which could not have been condoned by the Commissioner (Appeals) and the Order-in-Original was passed on 7-3-2006 and was sent to the addresses of the factory as in the show cause notice. The learned counsel submitted that the factory was closed even at the time of investigation taken up by the Revenue in 2003 - Held that - once the Department knew that the addresses for correspondence was different and not the factory and having sent the intimation for final hearing to such addresses the order also should have been sent to the same addresses to ensure delivery - According to Section 37C of Central Excise Act 1944 (the Act) the service would be complete if the same is sent by registered post with acknowledgement due to the person for whom it is intended. Sending to a wrong address is definitely not covered by Section 37C of the Act. when the order cannot be served by registered post with acknowledgment due or by tendering the decision directly other options would be available. Since the adjudicating authority knew the addresses for correspondence as it emerges from the notice for final hearing there is no need for sending the order to a different address - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Delay in filing appeals beyond the condonable period.
2. Non-service of Order-in-Original due to incorrect address.
3. Applicability of Section 37C of the Central Excise Act, 1944.
4. Consideration of addresses for correspondence in determining service of order.
5. Receiving a copy of the Order-in-Original from the Range Superintendent.

Analysis:
1. The Tribunal noted that the appeals were rejected due to being filed beyond the condonable period. The Commissioner (Appeals) did not pass an order on merit, leading to the waiver of the pre-deposit requirement. The Tribunal decided to take up the appeals for a final decision since the matter could be resolved at that stage without the need for pre-deposit.

2. The issue of non-service of the Order-in-Original arose as the appellant claimed they did not receive the order due to it being sent to the factory address, which was closed. The Tribunal emphasized that under Section 37C of the Central Excise Act, 1944, service is considered complete when sent by registered post with acknowledgment due to the intended person. Sending to a wrong address does not fulfill this requirement, and the Tribunal highlighted the importance of ensuring delivery to the correct address for proper service.

3. The Tribunal discussed the applicability of Section 37C of the Act in the context of service of orders. It emphasized that sending orders to incorrect addresses does not align with the provisions of the Act, and other options for service should only be considered when registered post or direct tendering are not feasible.

4. Considering the addresses for correspondence, the Tribunal pointed out that since the Department was aware of the correct addresses for the appellant, as evidenced by the notice for final hearing, the Order-in-Original should have been sent to those addresses to ensure proper delivery. The Tribunal highlighted the need for the Commissioner (Appeals) to consider this aspect in determining the delay in filing the appeals.

5. Lastly, the Tribunal addressed the issue of the appellant receiving a copy of the Order-in-Original from the Range Superintendent. It stated that without statutory support for such a conclusion, this claim was not sustainable. The Tribunal concluded that the matter needed to be reconsidered by the Commissioner (Appeals), setting aside the impugned orders and remanding the case for a fresh decision with reasonable opportunities for the appellants in accordance with the law.