2017 (10) TMI 498 - AT - Central Excise

Time limitation - whether the appeal before the Commissioner (Appeals) was time bar in the fact that director of the respondent company had acknowledged the order-in-original? - Held that - it is undisputed fact that when the order was acknowledged by the director of the company the control of the company was not with the director but it was with official liquidator appointed by BIFR, therefore director of the company had no locus standi for dealing with the matter related to the company. In such case even though order was delivered to the director of the company, it can not be said that order was served to the company - the contention of the Revenue that acknowledgment of the order by the director of the company is the date of receipt of the order, accordingly appeal is time bar, is not acceptable, therefore, appeal before the Commissioner was well within the time and same was filed after company received the certified copy of the order from the department. Whether the order dated 28-2-3013 in writ petition No. 1951/13 has any implication in the proceedings of the Commissioner(Appeals)? - Held that - the said petition was filed to quash the proceedings of recovery of adjudged dues arising out of Order-in-original and same was not for relief on merit. Though the department has filed an affidavit before the Hon ble Bombay High court wherein issue of service of the order was raised but the high court has not given any findings on that issue and petition was disposed of without granting any relief. The relief sought for was not on the merit which was involved in the appeal which was pending before the Commissioner(Appeals) but from the recovery of the dues. Therefore Hon ble Bombay high court order dated 28-2-2013 will not come into the way for deciding the appeal by the Commissioner(Appeals). Whether the remand ordered by the Commissioner(Appeals) is proper and legal? - Held that - as regard the factual aspect the adjudicating authority is the proper authority to verify the facts therefore even if the commissioner appeal has power to remand the matter but this tribunal has the power to remand the matter, accordingly matter is remanded to the original adjudicating authority for passing a fresh order by taking into account the observations of the Commissioner(Appeals) given in the impugned order. Appeal is disposed of by way of remand. Appeal disposed off.

Summary

Issues involved:
1. Appeal challenging Order-in-Appeal on time bar relief and remand to Adjudicating authority.

Analysis:
1. The main issue in the appeal was whether the appeal before the Commissioner (Appeals) was time-barred due to the acknowledgment of the order-in-original by the director of the respondent company. The Tribunal found that the company was under the control of the official liquidator appointed by BIFR at the time of acknowledgment, rendering the director unauthorized to receive the order. Citing relevant case law, the Tribunal concluded that the order was not properly served to the company, thus rejecting the Revenue's argument of time-bar.

2. The next issue pertained to the implication of the order dated 28-2-2013 in writ petition No.1951/13 on the proceedings of the Commissioner (Appeals). The Tribunal determined that the writ petition aimed to quash recovery proceedings, not seeking relief on merit. Despite the Revenue's affidavit on service of the order, the High Court did not provide findings on this issue. Consequently, the High Court's order did not impact the appeal before the Commissioner (Appeals), which independently addressed the time-bar issue.

3. Lastly, the Tribunal examined the propriety and legality of the remand ordered by the Commissioner (Appeals). Observing that the remand was for factual verification, the Tribunal acknowledged the authority of the adjudicating authority to verify facts. While the Commissioner (Appeals) had the power to remand, the Tribunal also possessed such authority. Therefore, the matter was remanded to the original adjudicating authority for a fresh order based on the Commissioner (Appeals)'s observations. The appeal was disposed of through remand.

Conclusion:
The Tribunal resolved the issues by determining the appeal was not time-barred, the High Court's order did not affect the appeal before the Commissioner (Appeals), and the remand by the Commissioner (Appeals) was appropriate for factual verification by the adjudicating authority. The matter was remanded for a fresh order based on the Commissioner (Appeals)'s findings, leading to the disposal of the appeal.