2005 (9) TMI 187 - AT - Central Excise

Summary

Issues:
1. Appeal against rejection of appeal as barred by limitation.
2. Service of adjudication order through registered post.
3. Consideration of case on merits in remand proceedings.

Analysis:
1. The appellant filed an appeal against the rejection of the appeal as barred by limitation. The Commissioner had rejected the appeal on the grounds that the order dated 28-11-97 for recovery of duty was served through registered post, making any appeal against it time-barred. The appellant contended that they had not received the adjudication order and had requested a copy, which was not provided. The appellant argued that the presumption of service by registered post is rebuttable, and since they had not received the order, the appeal should not be considered time-barred. The Tribunal agreed with the appellant, stating that the disputed demand should be considered on its merits without further ado about the service of the order. The Tribunal ordered that the appellant be provided a copy of the Order-in-Original and allowed 60 days to file an appeal against it.

2. The Departmental Representative argued that service through registered post satisfies the requirement for service of the order. They cited legal precedents to support their position. However, the Tribunal noted that even if the order had been dispatched by registered post, the appellant's repeated requests for a copy of the adjudication order were not fulfilled. The Tribunal found it strange that recovery proceedings were initiated without providing an additional copy of the order to the assessee. The Tribunal emphasized that the appellant's contention of not receiving the order had better credibility, especially since a similar issue had been decided in their favor in another proceeding. The Tribunal concluded that the appellant should be given the opportunity to file an appeal and have the case decided on its merits by the Commissioner.

3. The Tribunal highlighted that their earlier remand order had directed the consideration of the case on merits. Therefore, the Commissioner was obligated to evaluate the demand in the remand proceedings. The Tribunal found the Revenue authority's contention strange and emphasized the importance of providing the appellant with a copy of the order for compliance. The Tribunal opined that the disputed demand should be reviewed without unnecessary focus on the service of the order. Consequently, the Tribunal ordered the immediate supply of a copy of the Order-in-Original to the appellant, allowing them 60 days to file an appeal, which would be decided on merit by the Commissioner (Appeals).