2015 (10) TMI 1826 - AT - Central Excise

Condonation of delay - Bar of limitation - Held that - It is seen that the Clause (b) of Section 37C (1) of the Act provides that any decision or the order passed under this Act shall be served by tendering the order or by sending by Registered Post with Acknowledgement Due. In the present case, it is seen that the Panchnama dated 05.06.2008 that Central Excise officers tendered the order in person at the factory premises of the appellant company. But, the security informed that the factory is closed down. So, the said officer affixed a copy of the order at the factory gate, which is within the purview of the service of order or decision, order under Section 37C of Central Excise Act 1944. I find that this fact was not disputed by the applicant. - Supreme Court in the case of M/s Singh Enterprises Vs CCE Jamshedpur - 2007 (12) TMI 11 - SUPREME COURT OF INDIA held that the Commissioner (Appeals) is not empowered to condone the delay beyond the prescribed period of limitation. - Decided against assessee.

Summary

Issues involved: Appeal dismissed as time-barred due to non-receipt of Adjudication Order and service of order under Section 37C of Central Excise Act 1944.

Analysis:
1. The appellant's appeal before Commissioner (Appeals) was dismissed as time-barred. The Consultant for the appellant argued that the Adjudication Order was not communicated to them, and they only obtained a copy under the RTI Act in 2013. The main contention was the lack of service of the order as per Section 37C(1)(a) of the Act. The appellant's company was closed and declared sick by BIFR. The argument was supported by referring to a decision of the Hon'ble Mumbai High Court. The appellant had not received the order due to closure, and now they wished to reopen the factory, requesting a lenient view from the tribunal.

2. The Revenue's Authorized Representative contended that the order was served by tendering in person at the appellant company's premises, as evidenced by the Panchanama. Since nobody was available to receive the order, a copy was affixed on the notice board at the factory gate. The Representative argued that this method of service complied with Section 37C(1)(a) of the Act.

3. The tribunal, after considering both arguments and examining the records, found merit in the Revenue's submissions. It was observed that the Central Excise officers had tendered the order in person at the factory premises, and upon finding the factory closed, had affixed a copy of the order at the factory gate. This action was deemed within the purview of service under Section 37C of the Central Excise Act 1944. The tribunal noted that this fact was not disputed by the appellant.

4. Referring to a Supreme Court judgment, it was highlighted that the Commissioner (Appeals) does not have the authority to condone delays beyond the prescribed limitation period. Consequently, the tribunal found no reason to interfere with the Commissioner (Appeals)'s order and rejected the appellant's appeal, thereby disposing of the stay application as well.