9911796707
TMI Blog2019 (8) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant. Also heard Mr. B. Sarma, learned standing counsel, Central Excise, Customs and Service Tax, appearing for the respondents. 2. This is an appeal under Section 35G of the Central Excise Act, 1944 praying for setting aside the order dated 29.05.2018 passed by the learned Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Eastern Bench, Kolkata, as well as the order dated 05.01.2018 (communicated on 30.01.2018) passed by the Commissioner (Appeals), Guwahati, in an appeal preferred by the appellant under Section 35 of the Central Excise Act, 1944 against the Order-in-Original dated 14.07.2010 passed by the Additional Commissioner, Central Excise and Service Tax, Guwahati. 3. By the Order-in-Original dated 14.07.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of their total tax liability as determined vide this Order within 1(one) month from the date of communication of this Order along with interest, as applicable thereon, and the amount of penalty equivalent to the extent of 25% of their total tax liability of Rs. 17,15,905/-. 4. Moreover, I impose a penalty of Rs. 1,000/- [Rupees One Thousand] only on the Noticee in terms of Section 77 of the Finance Act, 1994 on account of their failure to obtain Service Tax Registration and due to non-submission of ST-3 Return during the material period. 5. Moreover, I order for appropriation of the amount of Rs. 20,000/- [Rupees Twenty Thousand] only already deposited by the Noticee towards clearance of their outstanding liability arising out of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority is not tenable in law and there is no reason as to why the appellant would not prefer appeal within the period of limitation if the Order-in-Original was received, more so, when there is no provision for condonation of delay. It is submitted by her that the appellant was under the bonafide impression that after hearing the appellant, the authority might have been satisfied and, therefore, the show-cause notice issued earlier was dropped. She reiterates that the appellant did not receive the Order-in-Original though stand is taken by the department that the same is delivered to the appellant by a special messenger. If the date of receipt of the certified copy is taken to be the date on which the appellant has knowledge about the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrable laches and negligence on the part of the appellant and as the statute debars entertainment of any appeal after a period of 60 days along with grace period of 30 days subject to showing sufficient cause, when, admittedly, the appellant had filed the appeal after more than 7 years, the learned Commissioner (Appeals) and the CESTAT were justified in rejecting the appeal as time-barred. He, however, candidly admits that the Order-in-Original was not despatched by registered post with A/D. 8. We have considered the submissions of the learned counsel for the parties and have perused the materials on record. 9. A perusal of the Order-in-Original dated 14.07.2010 would go to show that on the last page of the order, which is page-47 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HY/09/3564 dated 15.07.2010 to the Superintendent (Anti-Evasion), Gp.-1, Central Excise & Service Tax, Hqrs. Office, Guwahati, requesting him to cause personal delivery of the aforementioned Order-in-Original dated 14.07.2010 with acknowledgement and to send the receipt of acknowledgement to the office. The said document is available at page-53 of the appeal papers and there is an endorsement to the following effect:- "Received REGISTER WITH A/D C.No.V(15)21/ADJ/HQR/GHY/09/3564 RECEIVE ............ 16.7.10" ......is a signature. 11. Mr. Sarma has submitted that the signature appearing thereon is that of the appellant and it manifestly demonstrates that the appellant had received the said Order-in-Original. 12. It is to be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2017 is within the prescribed period of limitation. The Commissioner (Appeals) and the CESTAT did not consider or advert to this aspect of the matter, which according to us, goes to the moot question with regard to date of knowledge of the appellant. 16. In that view of the matter, we are of the considered opinion that the orders passed by the Commissioner (Appeals) and CESTAT cannot be sustained in law and accordingly, the orders dated 05.01.2018 (communicated on 30.01.2018) and 29.05.2018 are set aside. The Commissioner (Appeals) will now hear the appeal on merits and pass appropriate orders in accordance with law. Parties to the proceeding will appear before the Commissioner (Appeals) on 16.09.2019. 17. With the above directions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
