2005 (12) TMI 172 - AT - Central Excise

Summary

Issues:
Appeal dismissal as time-barred due to delayed filing after order-in-original service.

Analysis:
The case involved the rejection of an appeal by the Commissioner (Appeals) on the grounds of being time-barred as it was filed 2 and a half years after the service of the order-in-original. The appellants contended that they did not receive the original order until they were asked to deposit a penalty in 2001. They argued that the order was sent to a wrong address, and they only received it in 2001. The appellants relied on Section 128 of the Central Excise Act, stating that the appeal should be filed within three months of order communication. They referred to a Tribunal decision highlighting the need for actual receipt of the order for appeal filing. The Revenue argued that the order was sent via registered post to the address on record and deemed served as per Section 37C of the Act. They cited precedents supporting the presumption of service for registered post letters. The appellants submitted an affidavit confirming the receipt of the order in 2001 and no prior communication.

The Tribunal considered whether the registered post letter, not returned, should be deemed as order communication for appeal filing. It noted the lack of clarity on the date of order communication. The appellants' assertion of receiving the order in 2001 and the failure of the Department to prove communication before that date led to the rejection of the Department's claim. The Tribunal found that the appellants rebutted the Department's assertion of order communication and deemed the order service date as 6-8-2001. Consequently, the Commissioner (Appeals) order was set aside, and the case was remanded for further consideration on merits.