2005 (10) TMI 141 - AT - Central Excise

Summary

Issues Involved:
1. Appeal against Order-in-Appeal dismissed on the ground of limitation
2. Whether the appeal filed against Order-in-Original dated 5-11-99 is within the time limit stipulated in Section 35 of Central Excise Act, 1944

Analysis:

Issue 1: Appeal Dismissed on Limitation
The appeal was directed against the Order-in-Appeal which dismissed the appellants' appeal on the ground of limitation. The learned advocate for the appellants argued that they did not receive the Order-in-Original until 17-3-2001, despite making efforts to obtain it from the department since 25-7-2000. The appellants claimed they were not informed about the order and only learned of it through the Range Office on 25-7-2000. They subsequently followed up with letters to the department, finally receiving an attested version of the Order-in-Original on 17-3-2001. The advocate emphasized that the appeal was filed within the time limit stipulated under Section 35 of the Central Excise Act, 1944. The learned D.R., however, contended that the appellants were served the Order-in-Original by Registered post and faulted them for not filing the appeal in time.

Issue 2: Compliance with Time Limit Stipulated in Section 35
The Tribunal considered the submissions from both sides and examined the records. It was noted that the appellants consistently protested the non-receipt of the Order-in-Original from the beginning and made efforts to obtain a copy. The department claimed to have dispatched the Order-in-Original through Registered post with A.D. but could not produce the "Acknowledgement Card" signed by the appellants' officer. The Tribunal found that the Revenue failed to establish that the Order-in-Original was communicated to the appellants before 17-3-2001. The Tribunal referenced a case law highlighting that if an order sent by registered post does not reach the appellants, there is no communication of the order to them, making the presumption of delivery rebuttable. The Director of the appellants filed an affidavit stating they had not received the Order-in-Original until 17-3-2001. Consequently, the Tribunal held that the appeal was not time-barred as it was filed within the stipulated period under Section 35 of the Central Excise Act, 1944.

In conclusion, the Tribunal set aside the impugned Order-in-Appeal and remanded the appeal to the Commissioner (Appeals) for a decision on merits after providing a reasonable opportunity of hearing to the appellants.