2024 (12) TMI 1132 - AT - Central Excise

Rejection of appeal on the ground of time limitation - appeal appears to be filed after 3 years from the date of the order - HELD THAT - As per the fact, the order was first sent by registered AD post which was returned as the factory was closed, thereafter the order was affixed on the notice board of the Assistant Commissioner following the clause (c) of Section 37C. By plain reading of Section 37C (1) sequentially from clause the (a) to (c), first the department is supposed to send the order by registered post and if it is not possible to be delivered thereafter the order should be affixed to some conspicuous part of the factory, warehouse or other place of business or usual place of residence of the person for whom such decision, order is intended and in case the order cannot be served in the manner prescribed under 37C(1) (a) and (b) then only the order should be affixed on the notice board of the office of the department. Therefore, it is found that instead of affixing a copy on the notice board, and since the order was returned which was sent by post, the department was supposed to affix copy of the order at the factory, which was not complied by the department. Therefore, the affixing tge order copy on the notice board is not the proper service of the order. In this fact only when the appellant have received the order copy on 27.03.2015 it is that which is correct date of communication of the order to the appellant, and if this be so, the appeal was filed well within the stipulated time period of two months. Hence, there is no delay. However, since the commissioner (Appeals) has decided the appeal only on the time bar, the matter needs to be reconsidered by Commissioner (Appeals) on merit. The impugned order is set aside - Appeal is allowed by way of remand to the Commissioner ( Appeals ), for deciding a fresh, only on merit without visiting again on the issue of time bar.

Summary

Issues: Appeal rejection on the ground of time bar; Violation of principles of natural justice; Proper service of order under Section 37C of Central Excise Act, 1944.

In this case, the appellant's appeal was rejected by the Appellate Tribunal CESTAT AHMEDABAD on the basis of being time-barred as it was filed after 3 years from the date of the order. The appellant argued that the Commissioner (Appeals) did not provide notice regarding the delay in filing the appeal, thus violating principles of natural justice. It was contended that the order was not received by the appellant and was only known during recovery proceedings at a partner's residence. The order was eventually provided to the appellant on 27.03.2015, and the appeal was filed within the prescribed period, negating the time bar. The department's service of the order was deemed improper as it was affixed on the notice board of the Assistant Commissioner instead of the factory, as required by Section 37C of the Central Excise Act, 1944.

Upon review, the Tribunal found that the Commissioner (Appeals) had indeed not followed the principles of natural justice by not notifying the appellant about the delay in filing the appeal. The department's service of the order was also found to be improper as it did not comply with the sequential requirements of Section 37C. The order should have been sent by registered post first, and only affixed to the notice board as a last resort. Since the order was only received by the appellant on 27.03.2015, the appeal was filed within the stipulated time period. Consequently, the Tribunal set aside the impugned order and allowed the appeal by remanding it back to the Commissioner (Appeals) for a fresh decision solely on merit without revisiting the time bar issue.