2019 (3) TMI 96 - AT - Central Excise

Condonation of delay n filing appeal - appeal dismissed on the ground of time bar - relevant dates for communication/service of order - Valuation - manufacture of various gases - Held that - The order of the Original Authority dated 31 December 2015 was dispatched by RPAD and is shown by the post office records to have been delivered on 13 January 2016. Even though the appellant has procured another certified copy of the order on 26 August 2016, we are of the view that the date of service of the order-in-original is to be considered as 13 January 2016, since the order was dispatched by RPAD in terms of Section 37C (i) of the Central Excise Act, 1944. The Hon ble Supreme Court has categorically held in the case of Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT OF INDIA that the Commissioner (Appeals) has no power to condone delay beyond the period of one month after the normal time limit of two months. There is no infirmity in the order passed by the Commissioner (Appeals) - appeal dismissed.

Summary

Issues: Valuation dispute in Central Excise duty, Time bar for filing appeal before Commissioner (Appeals)

In this case, the appellant, engaged in the manufacture of various gases under Chapter 28 and 29 of the Central Excise Tariff, was involved in a valuation dispute with the Department. A show cause notice was issued proposing to demand short paid service tax for a specific period. The Original Authority confirmed the demand of Central Excise duty with interest and penalty. The order-in-original was dispatched by Registered Post Acknowledgement Due (RPAD) and was received by the appellant's factory on 13 January 2016. The appellant claimed that they did not receive the original order and only obtained a certified copy on 26 August 2016, following which they filed an appeal before the Commissioner (Appeals) on September 19, 2016.

The Commissioner (Appeals) dismissed the appeal as time-barred, considering the date of receipt of the order-in-original as 13 January 2016, based on the post office records. The appellant argued that they only received the certified copy on 26 August 2016 and filed the appeal within the specified two-month period under Section 35B. However, the Departmental Representative supported the impugned order, citing the limitations on condonation of delay as per Section 35B and referring to the decision of the Hon'ble Supreme Court in Singh Enterprises case.

After hearing both sides, the Tribunal upheld the Commissioner (Appeals)'s decision, emphasizing that the date of service of the order-in-original should be considered as 13 January 2016, as per Section 37C (i) of the Central Excise Act, 1944. The Tribunal also reiterated the Supreme Court's ruling that the Commissioner (Appeals) cannot condone delay beyond one month after the normal two-month time limit. Consequently, the appeal was rejected, and the Commissioner (Appeals)'s order was upheld.