2022 (5) TMI 708 - AT - Central Excise

Time Limitation - intermediate goods - chemical solution known in the trade parlance as season' - short shelf life - weak/non marketable - period October, 2014 to March, 2015 - Service of SCN - HELD THAT - There is a definite error in the file number as mentioned in the copy of the dispatch register (reproduced in the order in appeal in the para 8 of the order). It is also found that the Department is making a vague claim of service of the order-in-original, as no proper receipt of service is produced before the Commissioner (Appeals) and the Department have not given name and designation of the officer of the company on whom the said order has been served. It is legally required to be served on the authorised representative of the company, normally the authorised representative for making compliance under the excise law and Rules thereunder. As it is the successive show cause notice, and appellant was already in appeal with respect to the same dispute for the previous period, there is no reason for the appellant to sit tight and not take any steps to file their appeal upon service of the impugned order-in-original - finding of the Commissioner (Appeal) is erroneous and hit by the provisions of section 37 C of the Act. The appeal is allowed by way of remand to the Commissioner (Appeals), with direction for hearing the appellant, and decide the appeal on merits.

Summary

Issues:
1. Dismissal of appeal on the ground of limitation.

Analysis:
The appellant, engaged in manufacturing finished leather, prepared a 'chemical solution' known as 'season' for coloring and protecting leather. Revenue claimed it to be dutiable under Chapter Heading 3809. Show cause notices were issued for different periods. The appellant, already in appeal for a precedent period, requested to keep proceedings in abeyance. The Order-in-Original was passed ex-parte without proper service. The appellant claimed not receiving the order until later, leading to dismissal of the appeal by the Commissioner (Appeals) based on limitation.

The appellant argued that the order was not served on them as claimed by the Revenue. They highlighted discrepancies in the dispatch register and the lack of proper acknowledgment or details of the recipient. The appellant contended that the order-in-original was not served as required by law, and the Commissioner (Appeals) erred in relying on Revenue's claim of service.

The Tribunal found errors in the file number mentioned in the dispatch register and the vague claim of service by the Revenue. It noted the legal requirement for proper service on the authorized representative of the company. The Tribunal held that since the appellant was already in appeal for a similar dispute, there was no reason for them to delay filing an appeal upon receiving the order-in-original. The Commissioner (Appeals) decision was deemed erroneous and against the provisions of the Act.

The Tribunal allowed the appeal, setting aside the impugned order, and remanded the case to the Commissioner (Appeals) for a hearing on merits. The appellant was granted the opportunity to present their case before the Commissioner (Appeals) with a copy of the order for a fair hearing.