2019 (2) TMI 1418 - AT - Central Excise

Maintainability of appeal - appeal was dismissed on the ground of time bar - communication of order - Held that - The order was issued on 17.09.2014 but as per the appellant submission they had not received the order copy and the zerox copy of the order was received on 02.06.2016 and appeal was filed on 26.07.2016 - The Ld. Commissioner (Appeals) has dismissed the appeal on the ground of time bar however he has not verified the fact that whether the order in original was served upon the appellant in 2014 itself after dispatch of the same - without verifying the dispatch and delivery of the original order, Commissioner (Appeals) cannot take a stand that the appeal was filed belatedly. Appeal is allowed by way of remand to the Commissioner (Appeals) to decide the matter only after ascertaining the fact that when the order was delivered to the appellant.

Summary

Issues: Appeal against dismissal on grounds of time bar

Analysis:
The appeal was filed challenging the order passed by the Commissioner (Appeals) dismissing the appeal on the ground of time bar. The original order sanctioning rebate and confirming demand was issued on 17.09.2014, with the appeal filed on 26.07.2016. The appellant contended that they did not receive the original order until 02.06.2016, and hence the appeal was filed within the prescribed time limit. The appellant argued that the Commissioner (Appeals) erred in dismissing the appeal without verifying the delivery of the original order. The appellant relied on the judgment of Admannum Packaging Ltd. 2018 (7) TMI 259-CESTAT New Delhi to support their case.

The Assistant Commissioner representing the Revenue maintained that the appellant failed to provide evidence that they did not receive the original order in 2014, as they received a copy on 02.06.2016. The Revenue argued that the receipt of a cheque in 2014 indicated that the original order was indeed delivered to the appellant in 2014 itself.

After hearing both parties, the Member (Judicial) found that while the order was issued on 17.09.2014, the appellant claimed to have received the zerox copy only on 02.06.2016, leading to the appeal being filed on 26.07.2016. It was observed that the Commissioner (Appeals) dismissed the appeal without verifying the actual delivery date of the original order. The Member (Judicial) emphasized that without confirming the dispatch and delivery of the original order, a determination on the timeliness of the appeal cannot be made. Consequently, the impugned order was set aside, and the appeal was allowed by remanding the matter back to the Commissioner (Appeals) for a decision based on the actual delivery date of the order to the appellant. If the Revenue fails to produce evidence, the receipt of the order by the appellant should be considered as 02.06.2016. The appeal was allowed by way of remand to the Commissioner (Appeals) for further proceedings.