2015 (1) TMI 1035 - AT - Central Excise

Condonation of delay - Inordinate delay of 12-13 years in filing appeal - Non receipt of order - Held that - When admittedly the fact of factory being closed was in the knowledge of the Revenue, surprisingly no efforts were made by the Revenue to serve the copy of the order to the assessee at their alternative addresses. The Revenue thought it fit to paste the order on the closed gate of the factory and satisfied to have completed their duty. One factor, which needs to be taken into consideration is that during the intervening period of 11 to 12 years, the Revenue has not made any efforts (at least shown to have made on record) to recover the amounts, in question. This fact also supports the appellant s stand that they had not received the order inasmuch as no Departmental officer approached them for recovery of the dues, during the intervening period. It is only when they approached the Development Commissioner for de-bonding of their unit and were advised to obtain a no clearance certificate from the Revenue, they approached the Revenue and were informed about the passing of the present impugned order. Immediately they procured a copy of the order under RTI application and filed the appeal within the limitation period of three months. As such, we are of the view that either there is no delay in filing the appeal or even if there is a delay, the same is not intentional inasmuch as the appellant has established that the order was not received by them and as such the same requires condonation. - Decided in favour of assessee.

Summary

Issues involved:
1. Delay in filing the appeal against the order of the Commissioner of Central Excise, Jaipur.
2. Service of the order and show cause notice on the appellant.
3. Condonation of delay in filing the appeal.
4. Adherence to principles of natural justice.

Analysis:

1. Delay in filing the appeal:
The appellant filed an appeal against the order of the Commissioner of Central Excise, Jaipur, passed in 1999, in 2011, resulting in a delay of around 12-13 years. The Revenue raised concerns about the delay, leading to the Tribunal directing the appellant to file a Condonation of Delay (COD) application.

2. Service of the order and show cause notice:
The appellant, a 100% Export Oriented Unit (EOU), had closed down their factory in 1997 and subsequently did not receive the show cause notice issued in 1999. The order was sent to the closed factory address and was returned undelivered. The Revenue defended the service by stating that the order was affixed to the factory gate, citing legal precedents to support their argument.

3. Condonation of delay:
The appellant argued that the appeal was filed within the three-month limitation period from the date of receipt of the order in 2011. They contended that the delay, if any, should be condoned due to the violation of natural justice principles in the impugned order and the merits of their case.

4. Adherence to principles of natural justice:
The Tribunal noted that the appellant did not participate in the adjudication proceedings, and the impugned order was passed without hearing them. Considering the lack of communication efforts by the Revenue to alternative addresses and the appellant's proactive steps upon learning of the order, the Tribunal found no intentional delay in filing the appeal. The Tribunal set aside the impugned order and remanded the matter for a fresh decision, emphasizing the importance of allowing the appellant to present their defense pleas before the adjudicating authority.

In conclusion, the Tribunal accepted the appeal on record, highlighting the need to consider the peculiar facts of the case, the lack of efforts by the Revenue to communicate effectively, and the appellant's actions upon learning of the order. The judgment focused on ensuring fairness, adherence to procedural requirements, and upholding the principles of natural justice in the legal proceedings.