2005 (6) TMI 53 - AT - Central Excise

Summary

Issues:
1. Stay of recovery of penalty on the ground of limitation.
2. Dispute regarding the date of receipt of Order-in-Original.
3. Interpretation of service of documents under Section 37C of the Central Excise Act.

Analysis:
The applicants sought a stay of recovery of penalty amounting to Rs. 6,05,661/-, contending that the Commissioner (Appeals) rejected their appeal on the grounds of limitation. The applicants argued that they did not receive the letters sent by registered post/speed post, as confirmed by the Commissioner (Appeals). They claimed to have received the Order-in-Original on 21-5-2004 and filed the appeal on 9-6-2004. The applicants relied on legal precedents to support their argument that the period of limitation commences from the date of receipt of the Order appealed against.

The Department, represented by the learned DR, submitted that the Order-in-Original was sent on 2-12-2003 for service by speed post. The Department provided a copy of the speed post booking list as evidence. The DR argued that since the letter was not returned, it can be inferred that it was served on the applicants. He contended that the appeal was time-barred, as concluded by the Commissioner (Appeals), and the applicants failed to establish their case.

Upon consideration of both arguments, the Tribunal referred to Section 37C of the Central Excise Act, which outlines the methods of service of decisions or orders. The Tribunal noted that the Department had sent the decision by speed post, and according to the General Clause Act, service by post is deemed to be affected when properly addressed, prepaid, and posted by registered post. The Tribunal found that the Department had established sending the decision by registered speed post, creating a presumption that it would have been served within a reasonable time. The applicants could not provide evidence to the contrary. Therefore, the Tribunal directed the applicants to pre-deposit Rs. 3,00,000/- within eight weeks, with recovery of the balance amount waived until the appeal's disposal, considering the financial hardship pleaded by the applicants.

In conclusion, the Tribunal upheld the decision that the appeal was time-barred due to the failure of the applicants to establish non-receipt of the Order-in-Original. The Tribunal's decision was based on the legal provisions regarding service of documents and the lack of evidence presented by the applicants.