2019 (12) TMI 10 - AT - Central Excise

Service of order - compliance with the time Limit for filing appeal - whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or the order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) of CEA, 1944, has been adhered to or otherwise? - difference of opinion - present matter has been referred to third member by Hon ble President on account of difference of opinion in the Bench. HELD THAT - The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm 10cm and is a window envelope, whereas the second one is of 27cm 12cm size. On examination of these envelopes, it has been fairly accepted by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. The learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department. Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered - the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant. In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable. In their separate orders, Hon ble President and Hon ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post. The findings and conclusion of the Hon ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944, is agreed upon - the matter is remanded to the learned Commissioner (Appeal) to decide the issue on merits. This order may be placed before the Division Bench for passing the Final Order.

Summary

Issues Involved:
1. Whether the appeal filed by the Appellant against the Order dated 29.08.2017 was within the time limit prescribed under Section 35(1) of the Central Excise Act, 1944.
2. Whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or on 06.08.2018/11.08.2018.

Issue-wise Detailed Analysis:

1. Time Limit for Filing Appeal:
The primary issue was whether the appeal filed by the Appellant against the Order dated 29.08.2017 was within the time limit prescribed under Section 35(1) of the Central Excise Act, 1944. The learned Commissioner (Appeals) found that the appeal was filed after a delay of approximately 308 days, based on the assumption that the order was communicated to the appellant on 12.09.2017. Consequently, the appeal was rejected as it was filed beyond the prescribed period.

2. Date of Communication of the Order:
The core of the dispute revolved around the actual date of communication of the order dated 29.08.2017. The appellant contended that they received the order only on 06.08.2018 by hand delivery and on 11.08.2018 through speed post. The Tribunal had directed the Revenue to file an affidavit to ascertain the date of communication. The Assistant Commissioner filed an affidavit and provided relevant registers and postal records.

Upon examining the dispatch register, speed post register, and the envelopes, it was found that the envelope bearing speed post no. ER924187517IN dated 01.09.2017 was too small to contain the order, which was of eleven pages and legal size. This was corroborated by the fact that the second envelope, which was larger and had higher postal charges, contained the order and was received by the appellant on 11.08.2018.

The learned Commissioner (Appeals) had concluded that the order was delivered on 12.09.2017 based on the report of the Adjudicating Authority and postal department communication. However, the appellant successfully rebutted this presumption by demonstrating that the envelope with speed post no. ER924187517IN contained a different letter and not the adjudication order. The Tribunal agreed with this rebuttal, referencing the principle laid down by the Hon'ble Madhya Pradesh High Court in Indore Municipal Corporation vs. Commissioner of Central Excise [2016 (338) ELT 567 (MP)], which allows for rebutting the presumption of delivery through speed post.

Conclusion:
The Tribunal concluded that the order dated 29.08.2017 was not delivered to the appellant on 12.09.2017 but on 06.08.2018. Therefore, the appeal filed on 04.09.2018 was within the time limit prescribed under Section 35(1) of the Central Excise Act, 1944. The impugned order was set aside, and the matter was remanded to the learned Commissioner (Appeals) to decide the issue on merits.

Final Order:
The order was pronounced in open court on 27.11.2019, agreeing with the findings and conclusions that the appeal was timely filed and remanding the case for a decision on merits.