2016 (12) TMI 477 - HC - Central Excise

Maintainability of appeal - condonation of delay - Held that - learned Commissioner (Appeals) did not accept the case on behalf of the appellant that they received OIA on 27.08.2012 merely on presumption and assumption and on surmises and conjectures. The learned Commissioner (Appeals) has observed that as the OIO was dispatched by Department and sent through RPAD on 25.07.2012 and therefore, considering the period of maximum 10 days as reasonable period for reaching OIO from the date of dispatch from the postal department to the factory of the appellant, the OIO ought to have been reached the appellant latest by 04.08.2012. Therefore, learned Commissioner (Appeals) treated and considered the starting point of limitation from 04.08.2012. The aforesaid finding cannot be sustained for the simple reason that the starting point of limitation is considered merely on presumption and assumption. The learned Commissioner (Appeals) has considered the date of dispatched of the OIO but has not considered in fact on which date the appellant received the copy of OIO. If according to department OIO was sent through RPAD, in that case, department must have received acknowledgment receipt with the signature and seal of the company. The Commissioner (Appeals) could have and ought to have called for the acknowledgment receipt of the RPAD to ascertain on which date the appellant / assessee received the copy of the OIO. The acknowledgment receipt of the RPAD is always with the department. Therefore, department was required to produce the cogent reason to prove the only date of receipt of OIO by the appellantassessee. The impugned order passed by the learned Commissioner (Appeals) confirmed by the learned Tribunal cannot be sustained and the matter is required to be remanded to the learned Commissioner (Appeals) to pass appropriate order on the aspect of condonation of delay afresh and in light of the observations made herein above. It will be open for the learned Commissioner (Appeals) to call for the necessary particulars from the department with respect to exact date of receipt of OIO by the appellant either from acknowledgment receipt of RPAD and / or from any other documents such as inward register etc. - appeal allowed by way of remand.

Summary

Issues:
1. Appeal against dismissal of appeal by Commissioner (Appeals) on the ground of limitation.
2. Dismissal of appeal by Tribunal confirming the order of Commissioner (Appeals) on limitation grounds.
3. Dispute regarding the date of receipt of the Order-In-Original (OIO) by the appellant.

Analysis:
1. The appellant challenged the dismissal of their appeal by the Commissioner (Appeals) due to a delay in filing. The Commissioner (Appeals) refused to condone the delay, citing that the appeal was filed beyond the prescribed period under Section 35 of the Central Excise Act and Rules. The Tribunal upheld this decision. The High Court found that the Commissioner (Appeals) based their decision on presumption and assumption regarding the date of receipt of the OIO. The Court emphasized that the starting point of limitation should be the actual date of receipt, not the date of dispatch. The Court directed the matter to be remanded to the Commissioner (Appeals) for a fresh decision, instructing to obtain the acknowledgment receipt of the Registered Post with Acknowledgment Due (RPAD) to determine the actual date of receipt.

2. The Tribunal's decision to dismiss the appeal and uphold the Commissioner (Appeals)'s order on limitation grounds was set aside by the High Court. The Court found that the Tribunal failed to consider the crucial aspect of the actual date of receipt of the OIO by the appellant. The Court emphasized the importance of verifying the receipt date through concrete evidence like the acknowledgment receipt of the RPAD. The matter was remanded to the Commissioner (Appeals) for a fresh decision considering the actual date of receipt.

3. The High Court quashed the orders of the Tribunal and the Commissioner (Appeals) and remanded the matter to the Commissioner (Appeals) for a fresh decision on the condonation of delay. The Court stressed the need to establish the actual date of receipt of the OIO by the appellant through concrete evidence like the acknowledgment receipt of the RPAD or other relevant documents. The Court allowed the appeal to the extent of setting aside the previous orders and directed no costs to be imposed.

This detailed analysis highlights the key issues raised in the legal judgment and the High Court's comprehensive review and directions for a fresh decision based on the actual date of receipt of the OIO.