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TMI Blog2014 (12) TMI 901X X X X Extracts X X X X X X X X Extracts X X X X ..... not bring on record any valid authorization by the company authorizing the person, who has purportedly received the impugned orders-in-original. Under such circumstances, the impugned orders-in-original cannot be said to have been served to the concerned party. There is also no proof of service of orders, if sent by post to the applicant. Under such circumstances, Government has no option but to accept the applicant's contention that they were not served the impugned orders-in-original either through post or through hand delivery as claimed by the department. As such, applicant's contention regarding receipt of the impugned orders-in-original, only on 21.10.2008 required to be accepted and that the appeals were filed before Commissioner (Appeals) on 6.1.2009, within condonable time limit of 90 days. Hence, the appeals cannot be treated as time barred and may be decided on merits. - Matter remanded back - Decided in favour of assessee. - F. No.195/44/2013-RA - 373-14-cx - Dated:- 4-12-2014 - Smt. Archana Pandey Tiwari, Joint Secretary ORDER This revision application is filed by M/s Pawan Jain Sons, New Delhi against the orders-in-appeal No.68 to 73/CE/DLH/12 dated 29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30.07.2008 to the alleged representative of the applicant on 21.8.2008. It was the duty of the dispatch department to verify the authenticity of the person receiving the certified copy of the order dated 30.07.2008 while handing over its copies to the alleged representative of the applicant. Further, it is also submitted that the applicant has never authorized anyone on its behalf to receive the copy of the order dated 30.07.2008 and it is not in the knowledge of the applicant 11 as to who has received the certified copies of the order on 21.08.2008. 4.2 It is again reiterated that the observation made by the Government vide its order No. 1103-1108/11-Cx dated 25.08.2011 is imperative in the instant case. Para 8 is reproduced below: The Government observed that the respondent department had stated that the impugned orders were dispatched on30.07.08 and the same were received by the representative of the applicants on 21.08.08, and they had also produced the photocopy of dispatch register wherein dated signature of the representative of the applicants appeared against the respective dispatch entries in respect of the impugned orders The applicant claimed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .01.2009. The Applicant has preferred the said application for condonation of delay due to the reason that the Proprietor of the Applicant was out of the country for business activity and thereafter was ill-health and not in a position to look into the legal matter of the Firm as well as to discuss the same with his legal advisor in respect to the rebate Order(s) for a time period of about two months. Moreover, in his absence there was no one in his staff who could look after the legal matters. 5. Personal hearing scheduled in this case on 30.09.2014 was attended by Shri Rajiv Tuli, Advocate on behalf of the applicant who reiterated the grounds of revision application. Shri V.S.Kalshain, Superintendent attend hearing on behalf of the department. The department vide letter dated 27.10.2014 submitted relevant records of their dispatch register. 6. Government has carefully gone through the relevant case records and perused the impugned order-in-original and order-in-appeal. 7. Government observes that the applicant was sanctioned part rebate claim. The applicant filed appeal before Commissioner (Appeals), who rejected the same as time barred. The applicant filed RA. No. 195/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 immediately thereupon the assessee filed an appeal before the CESTAT on 17th May, 2010. Hence, it is contended that the appeal filed is in time. 3. However, the CESTAT by the impugned order dated 28th January, 2011 Cravina Fabrics (P.) Ltd v. CCE 2011 (268) ELT 387 (Tri-Mum.) dismissed the appeal filed by the appellant assessee as time- bared on the ground that a copy, of the order of the Commissioner of Central Excise (Appeals) dated 31st March, 2008 was in fact dispatched on 1st April, 2008 by speed post and therefore, the assessee must have received the order of Commissioner of Central Excise (Appeals) in 2008 itself. Relying upon the judgment of the CESTAT in the case of Classic Marbles v. Commissioner of Customs (Import) 2009 (245) ELT 679 (Tri- Mum.) and the decision of the Punjab and Haryana High Court in the case of CCE v. Mohan Bottling Co. (P.) Ltd. 2010 (255) ELT 321 (Punj Har), the dismissed the appeal by holding that once a copy of the order was forwarded by speed post on 1st April, 2008, the requirement of Section 37C of the Central Excise Act, 1944 were complied and, therefore, the appeal filed by the assessee on 17th May, 2010 is beyond time and the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither to tender a copy of the decision to the assessee or to sent it by registered post with acknowledgment due to the assessee or its authorized agent. In the present case, neither of the above have been compiled with by the Revenue. Accordingly, the contention of the assessee that a copy of the order of (Appeals) was received for the first time on 26th February, 2010 would have to be accepted. Consequently, the decision of the CESTAT that the appeal filed by the assessee was time barred cannot be sustained. 8.2 On perusal of above judgement, it is quite evident that in terms of Section 37C(1)(a), the order needs to be sent by registered post with acknowledgement due, for whom it is intended or his authorized agent, if any. In this case, the impugned orders-in-original were shown to have been issued on 30.7.2008. However, the department claimed that the impugned orders were received by some representative of the applicant company on 21.8.2008. No satisfactory reasons have been given by the department as to why the orders have not been sent by post in spite of having shown as issued on 30.7.2008, and the same orders have been handed over to the representative of the applicant c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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