2015 (10) TMI 1124 - AT - Central Excise

Restoration of appeal - Bar of limitation - Held that - Commissioner (Appeals) is in error in holding that the date of service on the appellant is 18/4/09 without proof of the same available on record. That the impugned order is vitiated and is against the provisions of law. I accept the date of service of order as 23/6/09 as claimed by the appellant in view of no facts on record to the contrary. Accordingly, I set aside the impugned order and direct the learned Commissioner (Appeals) to hear the appellant on merits and dispose of the appeal in accordance with law - Decided in favour of assessee.

Summary

Issues: Appeal against dismissal on limitation without entering into merits.

Analysis:
The appellant, a 100% EOU, appealed against Order-in-Appeal No. AKP/128/NSK/2009 dated 30.12.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik, which dismissed the appeal on limitation grounds without considering the merits. The impugned order denying refund was dated 2/4/09, dispatched by speed post on 16/4/09, and the appeal was filed on 21/08/09. The Commissioner (Appeals) assumed the date of receipt by the appellant as 18/4/09 based on the dispatch date, which the appellant contested. The appellant claimed that the order was not served on them, and they only became aware of it in June 2009. The appellant argued that the appeal was filed within the 60-day limitation period from the date of knowledge and receipt of the order, i.e., 23/6/09.

The learned Counsel for the appellant relied on Section 37C of the Central Excise Act, which requires service of decisions or orders under the Act to be done by registered post with acknowledgment due. The counsel highlighted the absence of proof of delivery or acknowledgment supporting the assumed date of service by the Commissioner (Appeals). The appellant contended that the Commissioner (Appeals) erred in assuming the date of service and dismissing the appeal on limitation grounds. The appellant requested setting aside the impugned order and directing the Commissioner (Appeals) to hear and decide the appeal on merits.

On the other hand, the learned A.R. supported the impugned orders and argued that tendering to the Post Office equates to tendering to the assessee. The A.R. cited a ruling by the Hon'ble Supreme Court in Singh Enterprises vs. Commissioner, emphasizing that delays in filing appeals beyond the condonable period cannot be accepted by the Commissioner (Appeals) or higher courts.

After considering the arguments, the judgment concluded that the Commissioner (Appeals) erred in assuming the date of service without proof. The judgment accepted the appellant's claimed date of service as 23/6/09 due to the lack of contradictory facts on record. Consequently, the impugned order was set aside, and the Commissioner (Appeals) was directed to hear the appellant on merits and dispose of the appeal in accordance with the law. The appellant was instructed to appear before the Commissioner (Appeals) with a copy of the order and seek an opportunity for a hearing. The appeal was allowed by way of remand for further proceedings.