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TMI Blog2010 (5) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... i M.M. Reddy, Managing Director, BCL. Vide the orders (common order dated 15-3-2004) impugned in the appeals, the Commissioner of Customs and Central Excise (Appeals), Guntur sustained the order of the original authority demanding duty of Rs. 17,24,138/- (Rupees Seventeen lakhs twenty four thousand one hundred and thirty eight only) found due towards excise duty on cement manufactured and clandestinely cleared by BCL during the period 1997-98 & 1998-99, applicable interest, imposing equal amount of penalty on BCL under Section 11AC of the Act and another penalty of Rs. 10,00,000/- (Rupees Ten lakhs only) under Rule 173Q of Central Excise Rules, 1944 (CER) on BCL. The original authority also had confirmed duty of Rs. 21,437/- (Rupees Twenty one thousand four hundred and thirty seven only) found due on PP bags cleared by BCL. A penalty of Rs. 5,00,000/- (Rupees Five lakhs only) was imposed under Rule 209A of CER on Shri M.M. Reddy, Managing Director of the company. 3. Vide the impugned order, the Commissioner (Appeals) found that BCL had received and utilized gypsum, a raw material for manufacture of cement without accounting it in its raw material account Form-IV Register. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mises of the Appellants which the department normally does in case of closure of a company. In this case no communication was received by the Appellants office with regards to this personal hearing. 5. The Appellants further submits that they have not received the impugned appellate orders passed by the Hon'ble Appellate Authority staying the operation of the original order. Therefore, they could not comply with the decision of the Appellate Authority. As the stay orders were not complied with, due to their non-receipt by the Appellants, the Appellate Authority dismissed the Appeals filed by the Appellants. 6. As the Appellants did not receive the impugned order they could not file the appeal before this Hon'ble Tribunal. They received the impugned order from the office of the Commissioner of Appeals, Guntur only on 6-6-2009 (envelope attached). 7. Immediately they filed this Appeal. The Appellants submits that they were not at fault for non-receipt of the impugned order. Therefore, it is prayed that the Appeal may please be allowed condoning the delay. In the case of Rajaram Jora v. Registrar, CESTAT, Bangalore [2009 (238) E.L.T. 413 (Mad.) = 2009 (14) S.T.R. 451 (Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 2004 onwards : 85, Huda Enclave, Jubilee Hills, Hyderabad-33" 6.2 Income Tax returns filed for the years 1997-99, 2000-01, letters received from Kennel Club of India on various dates in the year 2002 and letters received from Standard Chartered Bank during 2003-04 have been enclosed in support of the claim as regards the residential address during the period 1997 to June, 2004. From the Credit Card statement for the month of October 2004 of Standard Chartered Bank, it is seen that the address of Shri M.M. Reddy is Plot No. 85, Huda Enclave, Jubilee Hills, Hyderabad during the period 2003-04. The same address figures in the Credit Card statement of that bank in the name of Shri M.M. Reddy for the months of August and September 2004 also. 7. From a communication dated 30-9-2009 received by the ld. SDR from the office of the Commissioner of Customs & Central Excise (Appeals), it is seen that the subject orders-in-appeal had been sent to the appellants by RPAD on 22-3-2004 but had been returned undelivered by the postal authorities. That office had not received any information from the Assistant Commissioner of Tirupati Division who had been sent a copy of the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order which had apparently confirmed dues of Rs. 6,00,000/- (Rupees Six lakhs only) as having been passed ex parte. She relied on the decision of the Tribunal in S.A. Plywood Industries v. CCE, Siliguri reported in 2008 (230) E.L.T. 329 (Tri.-Kolkata) = 2010 (17) S.T.R. 616 (Tri.)] in support of the claim that despatch of the order by registered post was adequate service as prescribed under Section 37C(2) of Central Excise Act, 1944. She opposed the application for condonation of delay. 10. We have carefully perused the case records and studied the rival submissions. Appellants have claimed that BCL had not received the impugned order and that the acknowledgement received by the office of the Assistant Commissioner of Customs and Central Excise, Anantpur Division in December 2004 had been signed by some person not known to the appellant on behalf of Shri M.M. Reddy. Barring this acknowledgement card produced by the Revenue, there is no evidence for the impugned orders having been served on the appellants. The subject appeal has been filed in time if the date of receipt is taken as 6-6-2009 as claimed by the appellant. We find from the credit card statements of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as fulfilled requirement of Section 37C(2) of the Act and that was deemed to have been served on the person intended. Revenue having established proof of service by Speed Post as stated aforesaid, there is no scope to hold that there was no service of the order in accordance with law". 12.1 In the judgment of the Hon'ble High Court relied on by the Tribunal, their Lordships had held as follows : "Section 153 of the Act states that any order or decision passed or any summons or notice issued under the Customs Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; sub-section (b) of Section 153 need not be referred to as it does not arise in this case. A notice had been sent by registered post duly addressed to the Appellant. The section requires that notice shall be served by sending it by registered post to the person for whom it is intended. The section does not require that effective service should be effected by the appellant receiving it. This position is made clear by reference to Section 27 of the General Clauses Act which states that where any Central Act requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out hearing the appellants, we remand the matter for a fresh decision by the Commissioner (Appeals) following principles of natural justice. The stay application and appeal filed by BCL are disposed of.
E/COD/239/2009, E/St/404/2009 in E/590/2009 and Appeal E/590/2009
15. Shri M.M. Reddy has filed the COD application No. E/COD/ 239/2009, stay application No. E/St/404/2009 and appeal No. E/590/2009 impugning the order imposing penalty on him.
16. In view of the preceding discussion on the application for COD filed by BCL, there is no delay in filing of the captioned appeal. Application No. E/COD/239/2009 is dismissed as infructuous. We take up the appeal filed by Shri M.M. Reddy after dispensing with the requirement of pre-deposit. As the impugned order has been passed also for the appellant's failure to make pre-deposit and both the order u/s 35F and the impugned order had been passed without hearing the appellant, we remand the matter to the Commissioner (Appeals) for a fresh decision after hearing the appellant.
17. The COD applications, stay applications and the appeals are disposed of.
(Pronounced in open Court on 31-5-2010) X X X X Extracts X X X X X X X X Extracts X X X X
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