2016 (8) TMI 1400 - AT - Central Excise

Time limitation - service of notice - the adjudication order dated 28-12-2012 was sent by the Range Office on 21-2-2014 and the same was received on 28-2-2014. The appeal was filed on 19-3-2014 - Held that - The proof of delivery of the order is not available in the file. Section 37C of the Central Excise Act, 1944 mandates that in case of dispatch of the order or decision through speed post, the proof of delivery has to be obtained - In this case, admittedly, the proof of delivery of the order is not available, and hence, it has to be presumed that the order sent by the Department was not received by the appellant. Since the appeal was filed within one month from the date of its receipt, there is no delay in filing the appeal before the Commissioner (Appeals) - matter remanded back to the Commissioner (Appeals) to pass a reasoned and speaking order on the issue, after affording due opportunity of personal hearing to the appellant - appeal allowed by way of remand.

Summary

Issues: Appeal against dismissal on the ground of limitation.

Analysis:
The appeal was directed against an order dismissing the appeal of the appellant on the ground of limitation. The appellant argued that there was no delay in filing the appeal before the Commissioner (Appeals) as the adjudication order was received within the time frame. The Department, however, contended that since the order was sent via speed post and not returned, it was deemed to have been served on time. The Tribunal noted that the proof of delivery of the order was not available, as required by Section 37C of the Central Excise Act, 1944. Therefore, it was presumed that the order was not received by the appellant. The Tribunal held that the date of communication of the adjudication order for computing the limitation period should be considered as the date it was received by the appellant. As the appeal was filed within one month from the receipt of the order, the Tribunal found no delay in filing the appeal. Since the Commissioner (Appeals) had not discussed the merits of the case, the matter was remanded back to him for a decision on the appeal's merits after affording the appellant a personal hearing. The impugned order was set aside, and the appeal was allowed by way of remand.