2022 (4) TMI 515 - AT - Central Excise

Condonation of delay in filing appeal - appeal have been filed after 505 days from the date of despatch - address has been mentioned wrongly for despatch - presumption of service - proof of delivery not produced by Revenue - Compounded Levy Scheme - Section 37C of Central Excise Act - HELD THAT - Admittedly Revenue has despatched the order-in-original on 06.05.2019 at the wrong address. Hence, it is held that, there can be no presumption of service for want of despatch to the correct address. In this view of the matter, it is held that the presumption drawn by the learned Commissioner (Appeals) is wholly erroneous and against all canons of justice. In this view of the matter, the appellant have received the order-in- original only on 28.07.2020, and thus they have filed the appeal within the prescribed time as allowable under Section 35 of the Central Excise Act. The matter is remanded to the Commissioner (Appeals) to hear the appellant and decide the appeal on merits - appeal allowed by way of remand.

Summary

Issues:
- Appeal dismissed on the ground of limitation
- Dispute regarding the despatch and receipt of the order-in-original
- Calculation of limitation period for filing appeal

Analysis:
1. Appeal Dismissed on the Ground of Limitation:
The appellant, a manufacturer of Pan Masala and Gutka, filed an appeal against the dismissal of their refund claims on the ground of limitation. The appellant had ceased operations at three manufacturing units and filed refund claims for the duty excess paid during the period of non-operation. The Commissioner (Appeals) observed a significant gap between the despatch of the order-in-original and the filing of the appeal, concluding that the appeal was barred by limitation under Section 35 of the Act.

2. Dispute Regarding Despatch and Receipt of Order-in-Original:
The appellant contested the dismissal, highlighting discrepancies in the despatch address mentioned on the order-in-original and the actual premises of the appellant's units. The appellant argued that the order was despatched to an erroneous address, leading to a lack of presumption of service. The Revenue acknowledged the error in despatch but maintained that the order was received by the appellant at the incorrect address. The Tribunal found that the despatch to the wrong address negated the presumption of service, leading to a conclusion that the appeal was filed within the prescribed time limit.

3. Calculation of Limitation Period for Filing Appeal:
The Tribunal considered the timeline of despatch, receipt, and filing of the appeal in detail. By analyzing the despatch date, the average delivery time, and the subsequent filing date, the Tribunal determined that the appeal was filed within the allowable time frame as per Section 35 of the Central Excise Act. Consequently, the Tribunal allowed the appeal, setting aside the order-in-appeal and remanding the matter to the Commissioner (Appeals) for a decision on merit, directing the appellant to appear for a hearing.

This detailed analysis of the judgment showcases the complexities involved in determining the limitation period for filing appeals and the importance of accurate service of orders in legal proceedings.