2008 (8) TMI 327 - AT - Central Excise

Delay of 8 years - Condonation of delay in filing an appeal before tribunal appellant files an affidavit stating that order in original dated 31-3-99 has been served on 7-2-2008 by the Range Supdt. Bibinagar Range - Copy of the acknowledgement given the Supdt. is enclosed. revenue contested that Order-in-Original had been dispatched by registered post, no acknowledgement has been produced by the department. delay condoned appeal admitted.

Summary

Issues: Condonation of Delay in Filing Appeal

Analysis:
The appellant filed an application for condonation of delay of nearly 9 years in filing an appeal against the Order-in-Original No.12/99 dated 31-3-1999. The appellant claimed that the order was served on him on 7-2-2008, and the appeal was filed on 28-4-2008, within the time required under Section 35B(3) of the Central Excise Act, 1944. The appellant argued that the appeal could not have been filed earlier as the original order was served on him only on 7-2-2008. An affidavit signed by a notary was submitted to support this claim.

The departmental representative stated that the original order was dispatched to the appellant's address on 31-3-1999 but could not produce the acknowledgment of receipt. The representative relied on a case law involving Kamini Ispat Ltd. to support their argument. However, the appellant's advocate cited several decisions, including Margra Industries Ltd. v. CC, New Delhi, to support the condonation of delay.

After considering the arguments, the Tribunal found that the appellant had sworn in an affidavit declaring the delayed receipt of the original order. The Tribunal noted that the appellant could prove non-receipt of the order by filing an affidavit, and in the absence of an acknowledgment or proof of delivery, the delay in filing the appeal was condoned. The Tribunal distinguished the case of Kamini Ispat Ltd. and relied on the decision in Margra Industries case to allow the condonation of delay in filing the appeal.

In conclusion, the Tribunal allowed the application for condonation of delay, considering the circumstances and lack of proof of valid service of the original order. The decision was pronounced in open court on 26-8-2008.