2005 (9) TMI 23 - AT - Central Excise

Appeal Time-barred Recovery proceedings by Dept. without supplying additional copy of Order-in-original to assessee OIO sent by Registered post so appeal as barred by limitation cannot be upheld Held that appeal can be filed within 60 days after the service of copy of OIO

Summary

Issues:
- Appeal against rejection of appeal as barred by limitation
- Service of adjudication order through registered post
- Consideration of case on merits in remand proceedings

Analysis:
1. Appeal against rejection of appeal as barred by limitation:
The appellant had filed an appeal against the order for recovery of duty passed under Rule 230 of the Central Excise Rules, 1944. The Commissioner (Appeals) rejected the appeal as barred by limitation, stating that the order of recovery could not be appealed against. The appellant contended that they had not been served the adjudication order dated 28-11-97 and had requested a copy, which was not provided. The learned Counsel argued that the appeal being barred by limitation was unjustified as the appellant had not received the adjudication order, and the presumption of service by registered post was rebuttable. The Tribunal agreed with the appellant, directing that the appellant be supplied a copy of the order to file an appeal within 60 days for consideration on merit.

2. Service of adjudication order through registered post:
The Departmental Representative argued that service through registered post satisfied the requirement for order service, citing legal precedents. However, the Tribunal emphasized that despite the order being dispatched by registered post, the appellant's claim of not receiving the order had better credibility, especially considering a previous favorable decision in a similar matter. The Tribunal held that the disputed demand needed to be considered on its merits by the Commissioner without further ado about service of the order, ordering the appellant to be provided with a copy to file an appeal within the statutory period.

3. Consideration of case on merits in remand proceedings:
The Tribunal noted that their earlier remand order had directed the Commissioner to consider the case on merits. It found the Revenue authority's actions strange as recovery proceedings had been initiated without providing an additional copy of the adjudication order despite repeated requests. The Tribunal emphasized that the appellant's claim of not receiving the order was credible, given the favorable outcome in a previous proceeding. Therefore, the Tribunal ordered the Commissioner to consider the disputed demand on its merits without further delay, ensuring the appellant received a copy of the order for filing an appeal within the statutory period.