2015 (4) TMI 421 - HC - Central Excise

Imposition of penalty - Bar of limitation - Revenue contends that CESTAT was not justified in remanding the matter providing an opportunity to the respondent to cross-examine the witnesses - Held that - Appellant has vehemently contended that the CESTAT was not justified in doing so, on giving our consideration to that aspect of the matter, we are of the opinion that in the circumstance where an opportunity is granted to the respondent, if the respondent establishes that the notice/orders had not been served, all that would flow is that the appellate authority would have to thereafter consider the appeal on its merit rather than dismissing it for delay. On the other hand, even after an opportunity for cross-examination, if the appellate authority finds that the notice/orders served was in accordance with law and the mahazar was drawn as per the procedure, the appellate Tribunal would only reiterate its consideration based on the evidence that would be available. - no reasons to interfere with the order impugned herein. - Decided against Revenue.

Issues:
1. Appeal against decision of Customs, Excise and Service Tax Appellate Tribunal.
2. Imposition of penalty on respondent.
3. Appeal dismissed on the ground of delay.
4. Cross-examination of witnesses regarding service of notice.
5. Delay in filing appeal.
6. Contention regarding service of notice and orders.
7. Opportunity granted by CESTAT for cross-examination.
8. Justification of CESTAT's decision.
9. Disposal of appeal.

Analysis:
1. The High Court heard an appeal by the revenue challenging the decision of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the imposition of a penalty on the respondent. The Appellate Authority had dismissed the appeal filed by the assessee due to a delay in filing, leading to the appeal before CESTAT.

2. The respondent appealed to CESTAT, arguing that the Appellate Authority was not justified in restricting the cross-examination of witnesses regarding the service of notice. The appellant contended that the notice and order were dispatched to the respondent by registered post with acknowledgment, and service was also made with a drawn mahazar. The respondent was unrepresented during the proceedings.

3. The High Court examined the order in appeal and noted that the appeal was filed after a significant delay of 4 years from the date of the original order. This raised a question of the maintainability of the appeal after such a prolonged delay.

4. The respondent claimed that there was no delay in filing the appeal as the mahazar was not in compliance with the law, and the witnesses who signed the mahazar were not residents of the area. The respondent argued that the notice and orders were not served, attributing the delay to this issue. The CESTAT allowed cross-examination of witnesses to investigate this matter further.

5. Despite the appellant's strong objection, the High Court opined that if the respondent could prove that the notice was not served, the appeal should be considered on its merits rather than dismissed for delay. Conversely, if the appellate authority found the service of notice in accordance with the law, the appeal would be reconsidered based on the available evidence.

6. Ultimately, the High Court found no reason to interfere with CESTAT's decision to grant an opportunity for cross-examination. The appeal was deemed devoid of merit and was disposed of accordingly.

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