2021 (7) TMI 190 - AT - Central Excise

Principles of Natural Justice - order passed ex-parte as the notice of personal hearing was not served upon them - HELD THAT - The presumption of service in normal course is not available, in the facts and circumstances of the case, as the ld. Commissioner (Appeals) has erred in drawing such presumption and ignoring the fact that the order-in-original was returned with postal remark. The impugned order is set aside and that the appeal was filed before the Commissioner (Appeals) in time from the date of knowledge - the appeal is allowed by way of remand and matter is remanded to the Commissioner (Appeals) with the direction to hear the appellant and pass order on merits in accordance with law.

Summary

Issues:
1. Service of notice for personal hearing not received by the appellant.
2. Erroneous presumption of service by the Commissioner (Appeals).
3. Appeal filed in time from the date of knowledge.

Analysis:
1. The appellant contended that the impugned order was practically passed ex-parte as the notice of personal hearing was not served upon them. The show cause notice was sent to the old Jaipur address, which the appellant had vacated in 2014. The order-in-original was dispatched to the old address but returned undelivered with the remark 'premises vacated four years back.' The appellant only learned about the order-in-original from co-noticees in June 2018 and applied for a copy. The Commissioner (Appeals) wrongly presumed service and dismissed the appeal due to delay in filing within 90 days. The Tribunal found the service by way of affixture on the notice board insufficient, given the circumstances.

2. The Authorised Representative for the Department relied on various case laws to support their contention of sufficient service of the order-in-original. However, the Tribunal noted that the presumption of service in normal course was not applicable in this case. The Commissioner (Appeals) erred in presuming service despite the order being returned undelivered with a clear remark. The Tribunal set aside the impugned order based on this finding.

3. After considering the arguments, the Tribunal held that the appeal was filed in time from the date of knowledge, not from the date of the original order. The Tribunal allowed the appeal by way of remand and directed the matter to be reheard by the Commissioner (Appeals) on its merits in accordance with the law. The appellant was instructed to appear before the Commissioner (Appeals) within 45 days from the date of receipt of the order to seek an opportunity for a hearing. The appeal was allowed by way of remand, granting the appellant a chance to present their case properly.