2014 (4) TMI 987 - HC - Central Excise

Duty demand - Clandestine removal of goods - Bar of limitation - Jurisdiction of Commissioner to condone delay - Held that - appellant filed the appeal before the Tribunal, all that was stated in the memo of appeal was that the Department had not produced the acknowledgement before this Court in the earlier proceedings and that the acknowledgement was infructuous and beyond the purview of the order passed by the Division Bench of this Court in the writ proceedings. Moreover, it may be noted that even in the rejoinder, which was filed by the appellant in the earlier proceedings, all that was stated was that Mr. Vikas Agrawal was living separately and due to loss in the business and disputes in the family, there was no communication between them. If, according to the appellant, Vikas Agrawal was not an authorised representative within the meaning of Section 35Q of the Central Excise Act, 1944, such a ground ought to have been specifically raised. No such ground was raised in the memo of appeal. In these circumstances, the Tribunal was justified in holding that the copy of the order of the Adjudicating Officer was received at the address of the appellant - The appeal, which was filed well beyond 9 years from the date of the receipt of the order of the Adjudicating Officer was clearly barred by limitation - Decided against assessee.

Summary

Issues:
1. Jurisdiction of the Commissioner (Appeals) to condone delay in filing an appeal beyond the statutory limitation period.
2. Validity of the order of adjudication dated 3 September 2001 and its communication to the appellant.
3. Failure of the appellant to raise specific grounds regarding the authorized representative in the appeal before the Tribunal.

Analysis:

1. The appellant contended that the order of adjudication dated 3 September 2001 was communicated only on 28 January 2011. However, the Commissioner (Appeals) dismissed the appeal on the grounds of limitation, stating that he lacked the power to condone a delay of more than 30 days beyond the statutory period of 60 days for filing an appeal. The Tribunal subsequently upheld this decision, emphasizing that the appeal filed after a delay of 9 years and 4 months was clearly barred by limitation. The High Court concurred, stating that the Commissioner (Appeals) had no jurisdiction to condone such a significant delay beyond the statutory limit, thereby dismissing the appeal.

2. The Tribunal found that the order of the Adjudicating Officer had been served at the appellant's address, as evidenced by the acknowledgment dated 19 September 2001. The appellant failed to establish any foundation or challenge the factual findings before the Tribunal regarding the service of the order. The High Court noted that the appellant did not raise any specific grounds regarding the authorized representative in the appeal before the Tribunal or the Commissioner (Appeals). Consequently, the Court upheld the Tribunal's decision, emphasizing that the appeal did not present any substantial question of law, and the delay in filing the appeal rendered it clearly barred by limitation.

3. The appellant's failure to raise specific grounds regarding the authorized representative in the appeal before the Tribunal was noted by the High Court. Despite the appellant's assertion that the authorized person had not received the order, no such ground was raised in the appeal. The Court highlighted that the correctness of the Commissioner (Appeals)'s factual findings was not challenged before the Tribunal. Therefore, the High Court affirmed the Tribunal's decision, emphasizing the appellant's lack of foundation in the pleadings to support the contention that the order had not been served on an authorized person.