2023 (1) TMI 103 - AT - Central Excise

Maintainability of appeal before commissioner (appeals) - time limitation - appeal dismissed solely for the reason that it was not filed within the stipulated period provided under section 35(1) of the Central Excise Act, 1944 - HELD THAT - It is not in dispute that the date of the order passed by the Assistant Commissioner, which order had been assailed before the Commissioner (Appeals), is January 18, 2019. It is also not in dispute that in Form EA-1 the appellant had specifically stated that the copy of the order was actually served upon the appellant on March 27, 2019. The Commissioner (Appeals) had sought verification from the Office of the Assistant Commissioner regarding the date on which the order was served upon the appellant and in this connection the Office of the Assistant Commissioner informed the Commissioner (Appeals) that the order was despatched to the appellant on January 18, 2019 and in support thereof a copy of the relevant page of the despatched register was submitted. In our opinion, this was not relevant for the purpose of determination of the period of limitation contemplated under section 35(1) of the Excise Act. What was necessary to be ascertained by the Commissioner (Appeals) for the purpose of limitation under section 35(1) of the Excise Act was the date on which the order was actually served upon the appellant. What is also important to notice is that the mode by which the order was communicated has also not been mentioned nor noticed by the Commissioner (Appeals), leave alone the date on which it was received by the appellant. When the Department failed to provide any evidence to controvert the submission of the appellant that the order was actually received by the appellant only on March 27, 2019, the appeal shall be deemed to have been filed within the stipulated period of sixty days as it was filed on May 27, 2019. The order of the Commissioner (Appeals) rejecting the appeal on the ground of limitation cannot, therefore, be sustained. What transpires from the order of the Assistant Commissioner is that even the date on which the order was passed has not been mentioned either at the start of the order or where the Assistant Commissioner has signed the order. This is not the only case in which this fact has come to our notice, for in many earlier orders, it was also noticed that the adjudicating authority or the appellate authority had not indicated the date of the order - The Department should maintain the postal tracking report in each case for the purpose of determining the limitation period. The order dated January 18, 2019 passed by the Commissioner (Appeals) is, accordingly, set aside and the appeal is allowed.

Summary

Issues:
1. Timeliness of filing the appeal under section 35(1) of the Central Excise Act, 1944.

Analysis:
The appeal in question was filed by M/s Shree Cement Limited against an order confirming the demand of central excise duty with interest and penalty. The Commissioner (Appeals) dismissed the appeal solely on the ground that it was not filed within the stipulated period provided under section 35(1) of the Excise Act. The Commissioner calculated the initial period of sixty days from January 18, 2019, the date of the original order, and concluded that the appeal was filed after two months and ten days, beyond both the normal and extended limitation period. The Assistant Commissioner confirmed dispatching the order on the same day it was dated, but the appellant failed to provide evidence of non-receipt. The Commissioner held that the appeal was liable to be rejected due to being filed beyond the prescribed period.

In response, the appellant argued that the date of actual receipt, not dispatch, should determine the limitation period under section 35(1) of the Excise Act. They highlighted the provisions of section 37C, emphasizing that the order should be deemed served on the date of receipt. The appellant contended that if the date of receipt, March 27, 2019, was considered, the appeal would fall within the limitation period. The authorized representative for the Department supported the impugned order.

The Tribunal noted that the critical factor for determining the limitation period was the date of actual service of the order upon the appellant, not the date of dispatch. The burden of proof lay on the Department to establish the date of service, which was not done. As the Department failed to provide evidence contradicting the appellant's claim of receiving the order on March 27, 2019, the appeal was deemed to be within the sixty-day limitation period. Consequently, the Commissioner's order rejecting the appeal on the grounds of limitation was set aside, and the appeal was allowed. The Tribunal also highlighted the importance of specifying the date of orders and emphasized the need for maintaining postal tracking reports for determining limitation periods.

In conclusion, the Tribunal ruled in favor of the appellant, setting aside the Commissioner's order and allowing the appeal to proceed on its merits. The Tribunal's decision underscored the significance of establishing the actual date of service for determining the limitation period under the Excise Act.