2016 (11) TMI 105 - HC - Central Excise

Period of limitation - delay in filing an appeal before the Commissioner (Appeals) - Held that - the appellant has entered into correspondence with the Primary Authority as lately as on 15.03.2011 and 28.03.2011. But, never brought to the notice of the department that they are not operating from their Tuticorin Office premises and instead, shifted their operations to Cochin. The default in this regard lies with the appellant - Decided against the assessee.

Summary

Issues:
- Appeal against order of Customs, Excise and Service Tax Appellate Tribunal
- Dispute regarding receipt of order in original
- Delay in preferring the appeal
- Allegation of seeking adjournments to delay the enquiry

Analysis:
1. Appeal against Tribunal's Order:
The Civil Miscellaneous Appeal was filed against the order of the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai. The Tribunal had dismissed the appeal by the appellant, challenging the orders passed by the Commissioner (Appeals) which rejected the appeal as time-barred.

2. Dispute over Receipt of Order:
The appellant contended that they did not receive the order in original dated 29.03.2011 at their Tuticorin Office as they had shifted to Cochin earlier. However, the Department presented evidence showing that the order was dispatched promptly and delivered to the appellant on 05.04.2011. The appellant's claim of not receiving the order was thus disputed.

3. Delay in Preferring Appeal:
The appellant argued that the delay in preferring the appeal was due to the alleged non-receipt of the order. However, a detailed examination of the facts revealed that the appellant had engaged in a series of correspondences with the Primary Authority up to March 2011 without notifying their change of office location. The appellant's request for postponement of personal hearings further indicated their awareness of the proceedings.

4. Allegation of Seeking Adjournments:
The Court noted that the appellant had consistently sought adjournments, including requesting to postpone the personal hearing dates. This behavior raised doubts about the appellant's cooperation and intention to delay the proceedings. The Court found that the appellant had failed to utilize the opportunities provided by the Primary Authority, leading to a lack of confidence in the explanation for the delay in preferring the appeal.

5. Conclusion:
After a thorough analysis of the facts and circumstances, the Court concluded that the appellant's actions, including seeking adjournments and lack of cooperation, did not justify the delay in preferring the appeal. As a result, the Court upheld the Tribunal's order dismissing the appeal, stating that there was no infirmity in the decision. The appeal was consequently dismissed, and no costs were awarded. The connected Miscellaneous Petition was also closed as a result of the judgment.