2013 (11) TMI 1216 - AT - Central Excise

Condonation of Delay Cross examination of witnesses or inspector - Assessee contended that the limitation period has to be counted from the date of communication of the order Held that - The order in appeal was passed by the Commissioner (Appeals) and sent to the assessee on the available address under the normal course under registered AD - the appellant s factory was lying closed and the said registered AD was received back to the department with the remarks closed - the field officer was sent to serve the order to the appellant - As the factory was lying close, there was no responsible person available in the factory as per proceeding drawn under panchnama - The officer alongwith witness at the request of the officer accompanied to the residence of the director of the company - he was not found in his residence premises, the order was pasted at the main door of his residence assessees have not been able to show any reason to doubt the correctness or authenticity of panchnama there was no merits in assessee s prayer for cross examination of witnesses or inspector - the order was served upon the appellant on 15.7.2006, in which case the appeal filed on 12.1.2011 would be barred by limitation Thus, the application for condonation of delay rejected Decided against Assessee.

Summary

Issues:
1. Recall of Tribunal's final order due to limitation.
2. Determination of limitation period for filing appeal.
3. Validity of service of impugned order on the appellant.

Recall of Tribunal's Final Order:
The appellant's appeal was initially rejected by the Tribunal on the grounds of being time-barred, as the impugned order was passed on 12.4.2006, and the appeal was filed on 12.1.2011 without a COD application. The appellant argued that they were not informed of the limitation issue and that the matter was listed for stay petition disposal. The Tribunal allowed the ROA application and recalled the final order, providing an opportunity to file a COD application.

Determination of Limitation Period:
The appellant contended that the appeal was filed within three months of receiving the impugned order on 14.10.2010, despite the order being passed on 12.4.2006. They claimed ignorance of the appeal filed by the Revenue and highlighted that their factory was closed since 2005. The Revenue supported their position by presenting evidence of attempting to serve the order, which was returned due to the factory closure. The appellant's argument that the appeal was not time-barred was countered by the Revenue's compliance with service provisions.

Validity of Service of Impugned Order:
The appellant's counsel challenged the authenticity of the service panchnama, claiming the order was not affixed to the residential door. However, the Tribunal found the panchnama to be legally sound, as it detailed the proper service procedure followed on 15.7.2006. The Tribunal dismissed the appellant's request for cross-examination, ruling that the panchnama accurately reflected the service of the impugned order. Consequently, the Tribunal concluded that the appeal filed on 12.1.2011 was time-barred, as the impugned order was deemed served on 15.7.2006, leading to the rejection of the COD application and upholding the limitation bar for the appeal.

In conclusion, the Tribunal's judgment addressed the issues of recalling the final order due to limitation, determining the appeal's limitation period, and validating the service of the impugned order. The Tribunal found that the appellant's appeal was indeed time-barred, as the impugned order was effectively served on 15.7.2006, rendering the appeal filed on 12.1.2011 outside the permissible timeframe. The Tribunal's detailed analysis of the service process and compliance with legal requirements led to the rejection of the COD application and the dismissal of the appeal as barred by limitation.