2008 (3) TMI 128 - AT - Central Excise

Appeal by the assessee against the order of Commissioner by which appellant s appeal was dismissed as time barred - appeal can be filed against OIO within 60 days of communication of order - Commissioner may extend the period up to 30 days if sufficient cause is shown - appeal in the instant case was filed after 228 days i.e. well beyond the extendable period and therefore, no meaningful purpose would be served in sending their appeal to Commissioner appeal dismissed

Summary

Issues:
1. Appeal dismissed as time-barred without opportunity of hearing.
2. Dispute regarding the date of service of the order-in-original.
3. Applicability of Section 35A of the Central Excise Act.
4. Interpretation of Section 37C regarding service of decisions/orders.
5. Provisions of Section 35 for filing appeals within a specified period.
6. Commissioner's discretion to extend the appeal period.

Analysis:
1. The appellant's appeal was dismissed as time-barred by the Commissioner without providing an opportunity of hearing, leading to a challenge before the Appellate Tribunal. The Counsel argued that if the appellate authority deems an appeal time-barred, a hearing opportunity must be granted. Reference was made to a similar case where relief was granted on merit, emphasizing the importance of due process.

2. The appeal stemmed from an order-in-original dated 29-6-2006, with the appellant claiming to have received a copy on 28-3-2007. However, the Commissioner's report indicated that the order was delivered via registered post on 4-7-2006. The Commissioner, citing a delay of 228 days in filing the appeal, noted limitations on condoning delays beyond prescribed periods.

3. The appellant contended that the copy of the order was received only on 28-3-2007, highlighting entitlement to a hearing under Section 35A of the Central Excise Act. It was argued that mere service by registered post does not presume receipt. Reference was made to a Tribunal decision in Margra Industries Ltd. v. Commissioner of Customs supporting this stance.

4. Section 37C of the Central Excise Act outlines the service of decisions, orders, etc. The Commissioner relied on a report from the Sub-Post Master confirming delivery of the order copy on 4-7-2006, discrediting the appellant's claim of service on 28-3-2007. The Tribunal found no merit in the appellant's argument based on the Margra Industries case.

5. Section 35 mandates filing appeals within sixty days of order communication, extendable by the Commissioner up to thirty days for sufficient cause. The Commissioner lacks discretion to further extend or condone delays beyond ninety days, as established in the case of Singh Enterprises v. Commissioner. The appellant's appeal, filed after 228 days, exceeded the extendable period.

6. Considering the circumstances, the Tribunal upheld the Commissioner's order, dismissing the appeal without the need for a pre-deposit. The Tribunal found no grounds to interfere with the decision, given the clear provisions and timelines outlined in the Central Excise Act.