9911796707
TMI Blog2010 (11) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. Heard the learned advocate for the appellants and DR for the respondent. This appeal arises of order dated 23rd March 2010 passed by the Commissioner (Appeals), Allahabad. By the impugned order, the Commissioner (Appeals) has dismissed the appeal having been filed beyond the extended period of thirty days after the expiry of limitation period prescribed for filing the appeal. The appellants were engaged in manufacture of Tinted Glass and non-Tinted Glass, Mirror Reflective Glass and Oxygen classifiable under chapter heading No. 7002.10, 7002.20, 7006.90 and 2804.90 respectively of the First Schedule to the Central Excise Tariff Act, 1985 and were also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the appellants that the intimation regarding the order dated 15th December 2008 was received by the appellants on 4th May 2009 and, therefore, the appeal filed on 29th June 2009 was within the period of limitation. 5. Before the Commissioner (Appeals) under letter dated 6th June 2010, the Assistant Commissioner, Allahabad was required to clarify the date of service of the copy of the order upon the appellants. Under letter dated 11th of June 2010, the Deputy Commissioner, Allahabad informed that the impugned order was despatched on 22nd December 2008 and was sent vide registered post RAL 801 dated nil, but the same was returned back by the postal authority on 26th December 2008 with remarks that factory was closed and receiver was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on oath by the appellants. On the other hand, the DR has submitted that the records with the Government office reveal service of copy of the order on 25th February 2009 and considering the same mere claim on behalf of the appellants of receipt of copy on 4th May 2009 without any documentary proof cannot be accepted. 7. As regards, the affidavit filed by the Deputy General Manager of the appellants, it cannot be disputed that he has made a categorical statement that the order dated 15th December 2008 was received by the appellants on 4th May 2009. The said statement has also been verified as true and correct to his knowledge based on the records. However, mere such statement in the affidavit is difficult to be believed for more than one re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that regard. Mere claim based on records without disclosing the description of the records which could reveal the relevant facts in relation to the matter in dispute cannot amount to saying that the party has discharged his burden on the point in issue and that too in the absence of cogent materials in support of his claim. Being so, merely on the basis of the affidavit, it cannot be said that the appellants has established their claim about receipt of the copy of the order on the particular date. 9. As against the above fact, the letter dated 17th March 2010 by Superintendent in relation to the matter in issue discloses that the office had disclosed that the copy of the order was served upon to the appellants on 25th February 2009 by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party after thought on their own copy of O-I-O served to then on 25-2-2009. In support of which a copy of XT- I Diary showing journey and service of O.I.O. is enclosed. This is submitted for information please. Encl. : one page. Sd/- Superintendent Range Naini -III C. EX Div.-I, Alld. 11. The entry in the diary quoted above clearly disclose endorsement to the effect that the sector officer had gone to the office of the appellant on 25-2-2009 and had delivered the copy of the order. It is not the case of the appellant that the sector officer had delivered something other than the copy of order on 25-2-2009 in their office. It cannot be disputed that the said diary was maintained in regular course of exercise of their duties by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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