2023 (11) TMI 412 - AT - Central Excise

Condonation of delay of approximately 6.4 years in filing appeal - Section 37 C (1) of the Central Excise Act, 1944 - HELD THAT - It can be seen that the order shall be served by tendering the same or sending it by register post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Central Excise and Customs constituted under the Central Board of Revenue Act 1963 to the person for whom it is intended or is authorized agent. In the present case it is admitted fact from the report of Jurisdictional Assistant Commissioner dated 22.07.2014 that the order was neither tendered personally to the appellant nor send by registered post or by speed post to the appellant. However, the same was pasted/affixed on the gate of the appellant factory. As per the Clause (b) of Section 37 C(1) it is clear that only if the order cannot be served in the manner provided in clause (a )then only the order should be affixed to some conspicuous part of factory or warehouse or other business etc. as the case may be. The revenue has admittedly failed to comply with the provision of Clause (a) of Section 37 C (1). Therefore, the service of the order by affixing on the factory gate is absolutely illegal and incorrect and the date of such affixing, cannot be taken as date of service of order. Consequently, the date of receipt of order copy by the appellant from their Dena Bank can only be considered as communication of the order to the appellant. From the date of receipt of order from Dena bank the appellant had filed the appeal before Commissioner (Appeals) well within stipulated time of 60 days. Therefore, there is no delay in filing the appeal. The ld. Commissioner (Appeals) should not have dismissed the appeal on time bar. Therefore, the impugned order is clearly not sustainable. Hence, the same is set aside. The appeal is allowed by way of remand to the learned Commissioner (Appeals) for deciding the matter on merit.

Summary

Issues involved:
The issue in this case revolves around the service of the Order-In-Original in accordance with Section 37 C(1) of the Central Excise Act, 1944, and the subsequent time bar contention leading to the rejection of the appeal by the Commissioner (Appeals).

Service of Order-In-Original:
The appeal challenges the rejection based on time bar, as the Order-In-Original was allegedly served by affixing it on the factory gate instead of following the prescribed methods of tendering, registered post, or speed post as per Section 37 C(1) of the Central Excise Act, 1944. The appellant argues that the order was received through their bank, and the appeal was filed within the stipulated 60 days, thus not exceeding the time limit for filing an appeal before the Commissioner (Appeals). The Tribunal found that the revenue failed to comply with the mandatory provision of sending the order through registered post or speed post before resorting to affixing it on the factory gate. Therefore, the service of the order by affixing it on the factory gate was deemed illegal, and the date of receipt of the order from the bank was considered as the communication of the order to the appellant. Consequently, the appeal was not time-barred, and the impugned order was set aside.

Decision and Remand:
The Tribunal allowed the appeal by remanding the matter to the Commissioner (Appeals) for a decision on merit without considering the aspect of limitation. It was emphasized that the appellant should be given an opportunity of hearing before the appellate order on merit is passed, ensuring compliance with the principles of natural justice. The decision was pronounced in the open court on 06.11.2023.