2014 (3) TMI 598 - AT - Central Excise

Waiver of pre deposit - Condonation of delay - Held that - appellant s factory was lying closed during the relevant period and a photo copy was procured by them subsequently. As such, the date of receipt of the photocopy of the order is relevant for the purpose of counting the period of limitation for filing the appeal. As per the Revenue, the impugned order of original adjudicating authority was sent to the appellant by registered post. However, it is not their case that it was sent by registered AD. As such by extending the benefit of doubt to the appellant, the delay in filing the appeal, if any is not actual delay in as much as the limitation period has to be considered from the date of receipt of the order. We accordingly, after condoning the delay in filing appeal before the Commissioner (Appeals), dispense with the condition of pre-deposit, set aside the impugned order and remand the matter to the Commissioner (Appeals) for decision on merits - Decided in favour of assessee.

Summary

Issues: Time bar for filing appeal, receipt of original order, condonation of delay application.

Analysis:
1. Time bar for filing appeal: The Commissioner (Appeals) dismissed the appeal citing time bar as the reason. The impugned order was passed on 17.2.2009, but the appellants did not receive it. The appellants only became aware of the order when the Revenue approached them for recovery of dues. Subsequently, they filed an appeal on 18.1.2010. The crucial point here is the date of receipt of the order, as it determines the period of limitation for filing the appeal.

2. Receipt of original order: The appellants' factory was closed during the relevant period, and they obtained a photocopy of the order later on. The High Court of Rajasthan acknowledged the issue of the original order's supply and directed the appellants to file an appeal along with a condonation of delay application. The Revenue claimed that the original order was sent to the appellants by registered post, but they did not provide evidence of it being sent by registered AD. Consequently, the date of receipt of the photocopy of the order is deemed relevant for calculating the limitation period for filing the appeal.

3. Condonation of delay application: By giving the appellants the benefit of the doubt, the Tribunal decided that any delay in filing the appeal should not be considered actual delay since the limitation period should be counted from the date of receipt of the order. Therefore, the Tribunal, after condoning the delay in filing the appeal before the Commissioner (Appeals), waived the pre-deposit condition, set aside the impugned order, and remanded the matter to the Commissioner (Appeals) for a decision on merits.

4. Conclusion: The Tribunal disposed of the stay petition and the appeal by emphasizing the importance of the date of receipt of the order in determining the limitation period for filing an appeal. The decision highlights the significance of providing original orders promptly to avoid delays and ensure a fair opportunity for the appellants to exercise their right to appeal.