2016 (4) TMI 1318 - HC - Central Excise

Condonation of delay in filing appeal - service of order dated 8th May, 2003 was not by the mode prescribed under the statute - Held that - The perusal of the order does not show a prayer to receive the order on 10th June, 2003 only but other documents also, for which, the writ petition was not entertained by this Court but was disposed of. The writ petition was in fact withdrawn by the petitioner-appellant - The appellant cannot take benefit of the order passed by this Court in the writ petition. It is for the reason that copy of the order dated 8th May, 2003 had been received by the assessee and the documentary evidence to this effect has been referred by the Tribunal. There are no grounds to condone the delay - appeal dismissed.

Summary

Issues: Challenge to Tribunal's order dated 2nd September, 2014; Delay in filing appeal against order dated 8th May, 2003; Mode of service of order; Pleading regarding non-receipt of order through registered post; Reference to High Court's writ petition order; Condonation of delay.

In this case, the appellant challenged the Customs, Excise & Service Tax Appellate Tribunal's order dated 2nd September, 2014, which dismissed the appeal against an order dated 8th May, 2003 due to a delay of 10 years in filing the appeal. The appellant argued that the order was not served as per the prescribed mode under the statute, emphasizing that it should have been sent through registered post. The appellant contended that the delay was unjustified as the order was received after another High Court order. However, the Tribunal found documentary evidence of the order's receipt by the assessee on 10th June, 2003.

The Court noted that the appellant failed to plead non-receipt of the order through registered post, crucial for challenging the mode of service. The absence of such pleading rendered the argument invalid, especially when documentary evidence of receipt existed. The Court highlighted that the appeal did not address this issue, and the Tribunal's specific mention of documentary evidence further weakened the appellant's argument. Additionally, a High Court writ petition order was referenced, but it did not support the appellant's claim for condonation of delay.

The Court emphasized that the High Court's writ petition order did not address the issue of certified copy supply, and the appellant could not benefit from it as the order dated 8th May, 2003 was received by the assessee. Consequently, the Court found no error in the Tribunal's decision to dismiss the appeal due to the unexplained delay of 10 years. Therefore, the Court dismissed the appeal, upholding the Tribunal's order.