9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 1176 - HC - Central ExciseService of order - non-receipt of copy of the Order-in-Original - stand of the department is that the said Order-in-Original was served personally on the appellant on 16.07.2010 and the same was duly acknowledged by him - time limitation. HELD THAT - It appears the Superintendent (Adjudication) had sent a letter C.No.V(15)21/ADJ/HQRS/GHY/09/3564 dated 15.07.2010 to the Superintendent (Anti-Evasion), Gp.-1, Central Excise Service Tax, Hqrs. Office, Guwahati, requesting him to cause personal delivery of the aforementioned Order-in-Original dated 14.07.2010 with acknowledgement and to send the receipt of acknowledgement to the office - It is to be noticed that the letter number appearing at page-47 with the signature of the Additional Commissioner is the same letter dated 15.07.2010 issued by the Superintendent (Adjudication). Having regard to the endorsement of Additional Commissioner, the author of the Order-in-Original, that the order is being sent by registered post with A/D, it is not understood under what authority the Superintendent (Adjudication) altered the mode of service and sought to effect service of the order through a special messenger. When a particular mode for service is prescribed by the author of the Order-in-Original, we are of the considered opinion that such mode has to be complied with and no other mode is permissible, though a number of modes, otherwise, is provided in Section 37-C of the Central Excise Act, 1944. The computation of period of limitation will begin from 01.09.2017, the date on which, the appellant undisputedly was furnished with a certified copy of the Order-in-Original. So computed, the appeal filed before the Commissioner (Appeals) on 10.10.2017 is within the prescribed period of limitation - the orders passed by the Commissioner (Appeals) and CESTAT cannot be sustained in law - Appeal allowed - decided in favor of appellant.
Issues:
- Appeal under Section 35G of the Central Excise Act, 1944 against orders of CESTAT and Commissioner (Appeals) - Validity of Order-in-Original dated 14.07.2010 and its service on the appellant - Allegations of delay in filing appeal and dismissal on grounds of being time-barred - Discrepancy in the mode of service of the Order-in-Original Analysis: 1. Appeal under Section 35G: The judgment pertains to an appeal filed under Section 35G of the Central Excise Act, 1944, seeking to set aside the orders passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) and the Commissioner (Appeals) against the Order-in-Original dated 14.07.2010 by the Additional Commissioner, Central Excise and Service Tax, Guwahati. 2. Validity of Order-in-Original and Service: The appellant contended that they were not provided with a copy of the Order-in-Original until much later, leading to a delay in filing the appeal. The Commissioner (Appeals) rejected this plea, asserting that the appellant had received the order earlier. However, discrepancies arose regarding the mode of service, with the Order-in-Original indicating registered post with A/D while being served by a special messenger. 3. Allegations of Delay and Time-Barred Appeal: The department argued that the appellant's delay in filing the appeal was inexcusable, emphasizing that the appeal was lodged after over 7 years from the date of the Order-in-Original. Both the Commissioner (Appeals) and CESTAT upheld the dismissal of the appeal as time-barred due to the significant delay. 4. Discrepancy in Mode of Service: The judgment highlighted the discrepancy in the mode of service of the Order-in-Original. Despite the Order indicating registered post with A/D, it was served by a special messenger. The Court emphasized that the prescribed mode of service must be adhered to, and deviations are impermissible, even though alternative modes are available under Section 37-C of the Central Excise Act, 1944. 5. Conclusion and Set-Aside Orders: In light of the above analysis, the Court found that the orders of the Commissioner (Appeals) and CESTAT were not legally sustainable. Consequently, the orders dated 05.01.2018 and 29.05.2018 were set aside. The Commissioner (Appeals) was directed to reconsider the appeal on its merits and issue appropriate orders in accordance with the law, with a scheduled appearance date for the parties. This comprehensive analysis addresses the issues raised in the legal judgment, covering the appeal, validity of the Order-in-Original, allegations of delay, discrepancies in service, and the ultimate conclusion of setting aside the previous orders for further review.
|
