2014 (6) TMI 852 - AT - Central Excise

Appeal before Commission (appeal) - Bar of limitation - Delay in delivery of order - Held that - Since the delivery of Order-in-Original was made by dispatch through speed post which has already been held to be improper delivery. The date of receipt of the order by the appellant subsequently, as submitted by the learned counsel has to be treated as date of receipt. Since both sides agree that if that is taken into account appeal filed by the appellant before the Commissioner (Appeals) was within time, we consider it appropriate that at this stage itself the impugned order should be set aside and matter remanded to the Commissioner (Appeals) for decision on the stay application as well as appeal in accordance with law - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
- Rejection of appeal as time-barred due to delay in filing.
- Dispute regarding proper delivery of Order-in-Original sent via speed post.
- Consideration of date of receipt for calculating the limitation period.
- Waiver of pre-deposit and consideration of appeal on merits.

Analysis:
The appeal in question was rejected by the Commissioner (Appeals) on the grounds of being time-barred due to exceeding the condonable period. The appellant argued that they did not receive the Order-in-Original sent via speed post, and only became aware of it when visiting the Range office. Citing previous decisions, the appellant contended that dispatch via speed post does not constitute proper delivery as per the Central Excise Act, 1944. The Tribunal acknowledged the validity of the counsel's submissions and agreed that the date of receipt by the appellant should be considered as the date of receipt for filing the appeal within the limitation period.

Given the narrow scope of the issue, the Tribunal decided to waive the pre-deposit requirement and proceed with considering the appeal on its merits. It was established that the delivery of the Order-in-Original via speed post was not a proper method of delivery, and the date of actual receipt by the appellant should be deemed as the date of receipt for filing the appeal. Both parties agreed that considering this date, the appeal was filed within the stipulated time. Therefore, the Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for further proceedings, including a decision on the stay application and appeal in compliance with the law.

In conclusion, the Tribunal found in favor of the appellant, emphasizing the importance of proper delivery methods in determining the date of receipt for filing appeals within the prescribed limitation period. The decision highlighted the significance of adherence to procedural requirements and the need for fair consideration of appeals based on the actual circumstances of receipt rather than the method of dispatch.