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2008 (7) TMI 338 - AT - Central ExciseService of order - appellant had intimated the Department through a letter about the change of address dept. instead affixed the order on factory gate (old address) - Having put the Department to notice about the change in address, if the Department does not ensure that the order in original is properly addressed and sent to correct address, the benefit of treating the date of actual receipt of the after corresponding with the Department has to be extended to the appellant - Commissioner (Appeals) is not justified in dismissing the appeal on the ground of delay
Issues: Challenge to order of Commissioner (Appeals) based on delay in filing appeal.
Analysis: The appellants contested the dismissal of their appeal by the Commissioner (Appeals) citing delay in filing. The learned Advocate argued that the appeal was not filed late, emphasizing that the date of communication for Section 35 of the Central Excise Act, 1944 should be counted from the date the original order was received, which was 8th September 2007. The appellant had informed the Department about a change of address, supported by several correspondences and a specific letter to the Deputy Commissioner. Despite these notifications, the order in original was addressed to the old unit address and affixed to the factory gate, leading to delayed awareness by the appellants. The learned SDR for the Department contended that the notice was served as per law, shifting the responsibility to ensure proper delivery to the appellants. The Tribunal observed that all correspondence between 2002-03 with the Commissioner and Department occurred at the office address, not the unit's address. The appellants had proactively notified the Department about the address change, even referencing the show cause notice in their communication. Given the Department's failure to ensure correct addressing and delivery of the order in original, the Tribunal accepted the appellant's argument that the date of receipt should be 8th September 2007. Consequently, the appeal filed on 2nd November 2007 fell within the 60-day stipulated period, warranting consideration on merits. The Tribunal proceeded to waive pre-deposit, allow a stay petition, and remand the matter to the Commissioner (Appeals) for a decision on the appeal's merits.
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