9911796707
TMI Blog2009 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... and 16th September, 2000 - Hence, the records that the copies were received for the first time on 19th July, 2006 and the appeals were filed on 7th September, 2006, they were filed within the period of limitation and, therefore, it was necessary for the Commissioner (Appeals) to deal with the appeals on merits - Decided in favour of assessee. - E/163-165/2009-MUM - A/214-216/2009-WZB/C-I/EB - Dated:- 5-6-2009 - Justice R.M.S. Khandeparkar, Shri A.K. Srivastava, JJ. REPRESENTED BY : Shri Z.B. Nagarkar, Consultant, for the Appellant. Shri N.A. Sayed, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. These appeals are taken up for hearing in terms of the order passed in Stay Application Nos. E/197 to 199/09-Mum. 2. Since common question of law and facts arise in all these appeals, they were heard together and are being disposed of by this common order. 3. The appellants challenged the impugned common order passed in all the three appeals by the Commissioner (Appeals) on 31st October, 2008 being contrary to the materials on record as well as in contravention of the statutory provisions comprised under Section 37-C of the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the said letter, the Assistant Commissioner of Thane informed the appellants about the arrears pending against them under letter dated 19th July, 2006. The same reads as under : Please refer to your letter dated 4-7-1006 received on 19-7-2006 and as per the personal talk with undersigned, the list of arrears pending against M/s. Wellman Hindustan Ltd. is given below : Amt. in 000/- S. No. O-I-O No. Date Duty Penalty Total 1. DSN/71/99 dated 11-1-2000 1383 1383 2766 2. 14/Th-III/WHI/01 dated 31-7-2000 6626 6626 13252 3. DK/55/00 dated 31-7-2000 944 0 944 4. DK/56/00 dated 31-7-2000 117 25 142 5. 277-278/Th-III/PI/00-01 157 100 257 6. 294/Th-III/JPD/06/01 dated 27-2-01 1 0 01 7. 35/97-98 dated 28-11-97 38 2 40 8. 279-280/Th-III/00-01 dated 22-2-01 434 200 634 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so be enclosed for the purpose. 8. It is undisputed fact that copy of the order was received by the appellants on 19th July, 2006. However, the certified copy thereof, which was asked for on 10th August, 2006, was not delivered to the appellants. The appellants thereupon on 7th September, 2006 filed appeals before the Commissioner (Appeals) and the same came to be dismissed by the impugned order. 9. The Commissioner (Appeals) in the impugned order has held that, the appeals were filed after more than six years from the date of actual receipt of the impugned order-in-original by the appellants. The said finding has been arrived at on the basis of the letter dated 11th June, 2007, stated to have been received by the Commissioner (Appeals) from the Assistant Commissioner of Central Excise, Thane. It has been recorded in the impugned order that, the Assistant Commissioner of Central Excise had stated in the said letter that the original orders were served upon the appellants on 2nd August, 2000 and 16th September, 2000 and in support thereof he had enclosed photocopies of opening page of the impugned order showing the date and signatures of the persons who had received the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. Sub-section (2) of Section 37-C provides that, every decision or order passed or any summons or notice issued under this Act or the Rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1) of Section 37-C. 14. In other words, Section 37-C not only makes a complete provision in relation to the service of notice or order issued under the said order, but also in relation to the occasion when the presumption regarding the service of notice or order would arise. Sub-section (1) deals with the procedure for service of notice or order issued under the Act. Sub-section (2) specifies the date on which such service would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons employed in the appellants company or that the persons who had signed and received the copies had done so on behalf of the company. Indeed, the Assistant Commissioner could not have stated so because the endorsement neither discloses the same nor it is the case of the respondent that the author of the letter dated 11th June, 2007 had himself served the copy of the order upon the appellants. He had no personal knowledge about the actual service of the copy of the order upon the appellants. The records on the face of it did not disclose anything more than signatures of some person on the copies of the orders. Thus, under these circumstances, we fail to understand how the Commissioner (Appeals) could have by merely relying upon the said letter dated 11th June, 2007 arrived at a finding about the service of the copy of the order upon the appellants. In our considered opinion, there was no cogent material available before the Commissioner (Appeals) to hold that the copies of the orders were really served upon the appellants on 2nd August, 2000 and 16th September, 2000. As against this, there is solemn affirmation on behalf of the appellants that they got the copies for the first ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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