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TMI Blog2010 (5) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay in the matter and hence the impugned order on this ground itself cannot be sustained and is liable to be set aside - E/2700/2009 - 329/2010-EX(PB) - Dated:- 5-5-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri Rainesh Nair, Advocate, for the Appellant. Shri R.K. Verina, DR, for the Respondent. [Order per Justice R.M.S. Khandeparkar, President (Oral)]. - The appellants challenge the order dated 21-7-2009 passed by the Commissioner (Appeals) Indore, whereby the appeal filed by the appellants was dismissed on the ground of bar of limitation. The Commissioner (Appeals) has held that the original order passed on 26-3-2008, while the appeal was filed on 17-4-2009 i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order was never communicated to the appellants and appellants came to know about the said order only upon receipt of the notice dated 30-1-2009 requiring the appellants to deposit the penalty amount and the redemption fine in terms of the said order. It was pursuant to the receipt of the said notice alongwith copy of the order that the appellants prepared the appeal and filed the same before the Commissioner (Appeals), however, hi the process there was a delay of 18 days. The Commissioner (Appeals), however, ignoring this aspect of the matter and merely holding that the order is dated 26-3-2008 whereas the appeal was filed on 17-4-2009, that there was a delay of 387 days, dismissed the appeal. 5. Placing reliance in the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivery of speed post and further that provisions of law comprised under Section 37C of the Central Excise Act indicate that there cannot be simultaneous affixing of the order on the notice board and the affixation of the order has to be considered after failure of the first two modes of the service prescribed under the said provision of law. The Division Bench of the Tribunal in S.A. Plywood Industries case while considering the said decision of the Larger Bench observed that the issues for consideration before the Larger Bench were that whether dispatch of the adjudication order by speed post amounts to a valid service under Section 153(a) of the Customs Act, 1962 in the absence of proof of actual delivery of the speed post and whether simu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber relating to the case in hand which is found recorded even at the end of the order in question itself. Undoubtedly, the same tallies with the number found in the register and compared with the file number recorded in the record. Considering the said records alongwith letter dated 30-1-2009 by the appellants addressed to the Superintendent wherein it was the case of the appellants that the copy of the order was not readily available with them and that therefore they wanted additional copy, clearly goes to show that the Department had in fact despatched the copy of the order and the same was received by the appellants. However, the same was not traceable to the appellants and that therefore, they had requested for another copy of the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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