2005 (1) TMI 272 - AT - Central Excise

Summary

Issues:
- Appeal rejection on the ground of limitation
- Interpretation of date of service of the order
- Application of deeming provision under Section 37C(b) & (c) of the CE Act, 1944

Analysis:
The appeal in question was rejected by the Commissioner (Appeals) based on the ground of limitation. The appellants argued that the finding on limitation was erroneous considering the circumstances and legal provisions. The original order was issued on 30-3-2001 but was only served on the power of attorney holder of the appellants on 9-9-2002. The appeal was filed on 11-10-2002, within two months of service. The Commissioner relied on the date of despatch of the order by Registered post, 24-4-2001, as the date of service, citing Section 37C(b) & (c) of the CE Act, 1944. However, since the order was returned undelivered and served on the representative later, the date of tendering on 9-9-2002 was deemed as the date of service on the appellants. The Tribunal found that the appeal was filed within the time limit and set aside the order, remitting the matter back to the Commissioner (Appeals) for a decision on the merits of the case.

This judgment highlights the importance of correctly determining the date of service of an order for the purpose of calculating the limitation period for filing an appeal. It clarifies that when an order is returned undelivered and subsequently served on a representative, the date of tendering on the representative should be considered as the date of service. The Tribunal emphasized that the deeming provision under Section 37C(b) & (c) of the CE Act, 1944, cannot be applied in cases where the appellants were not contacted by the postal authorities and did not refuse to accept the letter. The decision underscores the need for a fair and accurate assessment of the circumstances surrounding the service of orders to ensure the proper application of legal provisions related to time limits for appeals.