2014 (12) TMI 901 - CGOVT - Central Excise

Appeal before Commissioner (Appeals) - Period of limitation - Determination date of service of order in original Denial of rebate claim - Denial of rebate claim - Held that - It is Evident in terms of Section 37C(1)(a), the order needs to be sent by registered post with acknowledgement due, for whom it is intended or his authorized agent, if any. In this case, the impugned orders-in-original were shown to have been issued on 30.7.2008. However, the department claimed that the impugned orders were received by some representative of the applicant company on 21.8.2008. No satisfactory reasons have been given by the department as to why the orders have not been sent by post in spite of having shown as issued on 30.7.2008, and the same orders have been handed over to the representative of the applicant company. If same orders have been shown as issued on 30.7.2008 through post, the same orders cannot be handed over to any person by hand. No satisfactory explanation has been given by the department for such contradiction. Further, the department could not bring on record any valid authorization by the company authorizing the person, who has purportedly received the impugned orders-in-original. Under such circumstances, the impugned orders-in-original cannot be said to have been served to the concerned party. There is also no proof of service of orders, if sent by post to the applicant. Under such circumstances, Government has no option but to accept the applicant s contention that they were not served the impugned orders-in-original either through post or through hand delivery as claimed by the department. As such, applicant s contention regarding receipt of the impugned orders-in-original, only on 21.10.2008 required to be accepted and that the appeals were filed before Commissioner (Appeals) on 6.1.2009, within condonable time limit of 90 days. Hence, the appeals cannot be treated as time barred and may be decided on merits. - Matter remanded back - Decided in favour of assessee.

Summary

Issues Involved:
1. Rebate claims for duty paid on inputs used in the manufacture of exported goods.
2. Time-barred rejection of appeals by the Commissioner (Appeals).
3. Discrepancies in the service of orders-in-original.

Issue-wise Detailed Analysis:

1. Rebate Claims for Duty Paid on Inputs:
The applicant, M/s Pawan Jain & Sons, filed six rebate claims amounting to Rs. 97,74,926 for duty paid on inputs used in manufacturing SS Utensils, which were exported. The original authority sanctioned part of the rebate claim based on input-output norms (SION C-832 fixed by DGFT) in the ratio of 1.3:1.0 for SS Utensils manufactured from SS Flat/Bars. However, the applicant claimed an actual consumption ratio of 1.882:1.000 for SS Flats used in the exported utensils.

2. Time-Barred Rejection of Appeals:
The applicant's appeals were initially rejected by the Commissioner (Appeals) as time-barred. The applicant then filed a revision application (RA No.195/219-224/10-RA) before the Joint Secretary (RA), who remanded the case back to the appellate authority to consider the applicant's submissions. Despite this, the appellate authority again rejected the appeals as time-barred.

3. Discrepancies in the Service of Orders-in-Original:
The applicant contested the receipt of the orders-in-original dated 30.07.2008, arguing that they neither received the orders through postal service nor by hand on 21.08.2008. The applicant requested to cross-examine the dispatch department to verify the authenticity of the receipt. The applicant also provided an affidavit stating that the orders were received only on 21.10.2008, and the appeals were filed within the condonable time limit of 90 days from this date. The department, however, claimed that the orders were received by the applicant's representative on 21.08.2008, based on the dispatch register entries.

Legal Analysis and Judgment:

Service of Orders:
The judgment referenced Section 153 of the Customs Act, 1962, and Section 37C of the Central Excise Act, 1944, which mandate that orders should be served by registered post with acknowledgment due or by hand delivery to the intended person or their authorized agent. The Hon'ble Bombay High Court's interpretation clarified that sending orders by speed post without acknowledgment does not fulfill the statutory requirement.

Contradiction in Department's Claim:
The government observed that the department failed to provide satisfactory reasons for not sending the orders by post and instead claimed hand delivery to an unauthorized representative. The lack of valid authorization and the contradictory claim of issuing orders both by post and by hand delivery led to the acceptance of the applicant's contention.

Conclusion:
The government accepted the applicant's claim that the orders-in-original were received only on 21.10.2008. Consequently, the appeals filed on 06.01.2009 were within the condonable time limit. The government set aside the impugned orders-in-appeal and remanded the case back to the appellate authority to decide on merits, ensuring reasonable opportunities for the applicant to present their case.

Order:
The revision application was disposed of, and the case was remanded to the appellate authority for fresh consideration on merits. The appellate authority was instructed to provide reasonable hearing opportunities to the applicant.

Final Disposition:
The judgment concluded with the government setting aside the impugned orders-in-appeal and remanding the case for a fresh decision on merits, ensuring due process and adherence to statutory requirements.