2019 (4) TMI 1789 - AT - Central Excise

Time Limitation - Section 35F of the Central Excise Act, 1944 - appeal dismissed for the reason that it was filed beyond the period stipulated - HELD THAT - The appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act. In this view of the matter, the contents of the despatch register and the speed post register assumes importance. In view of the averments made in the affidavit filed by the two lawyers, it is considered necessary to direct the Assistant Commissioner in charge of the Adjudication Cell to file his personal affidavit in response to the affidavit of the two lawyers which is at page No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019.

Summary

Issues: Appeal dismissed due to delay in filing within the stipulated period under Section 35F of the Central Excise Act, 1944. Discrepancies in the delivery date of the Order-in-Original.

Analysis:
1. The Commissioner (Appeals) dismissed the appeal as it was filed beyond the period specified in Section 35F of the Central Excise Act, 1944, based on the delivery date of the Order-in-Original dated 29 August, 2017. The appellant claimed to have received the order on 6 August, 2018, which was doubted by the Commissioner due to perceived abnormal delay.

2. The appellant's counsel presented the envelope containing the Order-in-Original with Speed Post No. ER924187517IN, sent on 1 September, 2017. Additionally, they provided another envelope from the Assistant Commissioner's office, received on 11 August, 2018. The counsel also produced despatch and speed post registers obtained under the Right to Information Act.

3. Examination of the speed post register revealed discrepancies in entries for 31 August and 4 September 2017, with a specific entry for Vedanta Limited dated 1 September, 2017, differing in format and details from other entries. The appellant's counsel suggested this entry was manipulated post-dispatch.

4. Affidavits from two advocates who inspected the registers supported the claim of tampering, highlighting the anomalous entry for Vedanta Limited. The dismissal of the appeal solely based on the delivery date prompted the Tribunal to order the Assistant Commissioner to submit a personal affidavit in response to the advocates' affidavits.

5. The Tribunal directed the respondent to present the original despatch and speed post registers on 10 May, 2019, ensuring no tampering. The discrepancies in the delivery dates and the suspected alteration in the records necessitated further investigation to ascertain the actual date of delivery of the Order-in-Original, emphasizing the importance of accurate documentation in legal proceedings.