2015 (8) TMI 897 - HC - Central Excise

Condonation of delay - service of the Order-in-Original on the ex-employee of the Appellant while the Appellant had become sick and was closed down - Held that - Findings of the first appellate authority with regard to service of notice are sought to be assailed on the ground of perversity or non consideration of any material. In the appeal, our jurisdiction is very limited as we decide only the substantial question of law after having found prima facie case. On appreciation of facts with regard to communication of the Order-in-Original and applying the law on the issue going by fact, the Tribunal came to a fact finding that the first appeal was sought to be preferred beyond the condonable period and dismissed the same. In view of the appreciation of fact and finding thereon, we do not find any element of law to decide in this appeal. - Decided against Assessee.

Summary

Issues Involved:
1. Proper service of Order-in-Original to ex-employee during company closure.
2. Reckoning the date of receipt of Order-in-Original by the Appellant.

Analysis:
Issue 1: The appellant challenged the order of the Assistant Commissioner of Customs, arguing that the service of the Order-in-Original on an ex-employee while the company was closed down was not proper. The first appellate authority confirmed that the company had acknowledged the receipt of the order, and the appellant had full knowledge of it. However, the appeal was filed after a significant delay of almost five years, leading to its dismissal on the grounds of limitation. The Tribunal upheld this decision, citing a Supreme Court ruling on similar issues. The appellant contended that during the company's sick period, there was no authorized person to receive the order, but this aspect was not considered by the authorities.

Issue 2: The second question of law revolved around the date of receipt of the Order-in-Original by the Appellant. The appellant argued that the Tribunal erred in considering the receipt date as 17.02.2004 instead of 19.01.2009, disregarding the prevailing circumstances. The court noted that the appellant did not challenge the first appellate authority's findings on the service of the notice based on perversity or non-consideration of material. The court's jurisdiction was limited to deciding substantial questions of law after establishing a prima facie case. The Tribunal concluded that the first appeal was filed beyond the condonable period, leading to its dismissal.

In the judgment, the court, comprising Sri Kalyan Jyoti Sengupta and Sri Sanjay Kumar, JJ., dismissed the appeal, stating that no element of law required a decision in the case. The court emphasized that its role was to assess the facts related to the communication of the Order-in-Original and apply the law accordingly. Consequently, the appeal was dismissed with no order as to costs, and any pending miscellaneous petitions were also dismissed.