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2019 (12) TMI 115 - AT - Central ExciseFiling of appeal is belated or not - Relevant date for service of order - Time Limitation - Section 11 (B) of Central Excise Act 1944 - Refund of Oil Cess paid in excess - price fluctuation clause - refund arising due to difference in the foreign exchange rate - refund claim was filed before the Assistant Commissioner on 30 May, 2017 pertaining to the period from June 2016 to August 2016 and January 2017 to March 2017 under Section 11 (B) of the Act - according to the Appellant, the appeal that was filed before the Commissioner (Appeals) on 4 September, 2018 was within sixty days from the date of communication of the order and could not have been rejected as being barred by time - refund rejected also on the ground of unjust enrichment. Whether the order dated 29 August, 2017 had actually been served upon the Appellant on 12 September, 2017 as contended by the Department or on 6 August, 2018 as contended by the Appellant? - Difference of opinion - present matter has been referred to third member by Hon ble President on account of difference of opinion in the Bench comprising of Hon ble President and Hon ble Member (Technical). HELD THAT - The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm 10cm and is a window envelope, whereas the second one is of 27cm 12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed post charge is levied. The learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department - Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered. The appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant - the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post ER9241875719IN dated 01.09.2017 and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable. In their separate orders, Hon ble President and Hon ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range office for delivery - further verification of the speed post register, if at all maintained in the Range Office, would not yield any positive result in as much as the register in the Range office would also show the same speed post number. Receipt of the said speed post letter not disputed by the appellant. It is only the content of the speed post letter ER9241875719IN which is in dispute. As far as the role of the officers of the department is concerned in furnishing the report, it is not clear as to what short of verfication conducted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order - it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal. The findings and conclusion of the Hon ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits.
Issues Involved:
1. Timeliness of the appeal filed by the Appellant. 2. Proper service of the order dated 29 August 2017. 3. Alleged manipulation in the Speed Post Register. 4. Compliance with Section 37C of the Central Excise Act, 1944. 5. Necessity for further inquiry into the dispatch and receipt of the order. Detailed Analysis: 1. Timeliness of the Appeal Filed by the Appellant: The Appellant filed an appeal against the order dated 29 August 2017, which was allegedly served on 12 September 2017. The Commissioner (Appeals) dismissed the appeal as barred by time, stating it was filed beyond the permissible period under Section 35(1) of the Central Excise Act, 1944. The Appellant contended that the order was received by hand on 6 August 2018 and by speed post on 11 August 2018, making the appeal filed on 4 September 2018 timely. 2. Proper Service of the Order Dated 29 August 2017: The core issue was whether the order was properly served on 12 September 2017. The Assistant Commissioner claimed the order was sent via speed post No. ER924187517IN on 1 September 2017. The Appellant argued that this envelope contained a different letter dated 1 September 2017 from the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Jodhpur, not the order dated 29 August 2017. 3. Alleged Manipulation in the Speed Post Register: The Appellant provided evidence suggesting manipulation in the Speed Post Register. The entry for 1 September 2017 appeared to be inserted later, and the speed post number did not match the sequence of other entries. The affidavit from the Assistant Commissioner and the inspection of the registers supported the Appellant's claim of manipulation. 4. Compliance with Section 37C of the Central Excise Act, 1944: Section 37C mandates that orders be served by registered post with acknowledgment due, speed post with proof of delivery, or courier. The Department failed to maintain proof of delivery, relying only on the fact that the speed post was not returned. The Tribunal found that the Department did not comply with the proper service requirements. 5. Necessity for Further Inquiry: The President of the Tribunal concluded that the order dated 29 August 2017 was not served on the Appellant on 12 September 2017 but was first made available on 6 August 2018. The Technical Member, however, suggested further inquiry into the dispatch records of the Range Office. The Third Member, Dr. D M Misra, agreed with the President, finding no need for further inquiry and concluding that the appeal was filed within the stipulated period. Conclusion: The Tribunal set aside the order dated 1 January 2019 by the Commissioner (Appeals) and remanded the matter for a decision on merits. The Tribunal also noted the manipulation in the Speed Post Register and directed an inquiry by the Chairman of the Central Board of Indirect Taxes and Customs. The appeal was deemed timely, and the Commissioner (Appeals) was instructed to decide the appeal expeditiously.
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