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TMI Blog2019 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... by all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. The learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department. Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered - the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30th May, 2017 on account of excess oil cess paid during the period June, 2016 to August, 2016 and January, 2017 to March, 2017 amounting to ₹ 19.43 Crores (approx.). The show cause notice was issued to the appellant on 09.08.2017 proposing rejection of the refund claim to which they filed their reply to the said notice. Consequently, the Adjudicating Authority heard the Appellant on 21st August, 2017 and issued the order on 29th August, 2017. 5. The appellant had also filed a refund claim earlier on 24th March, 2017 on the same issue for an amount of ₹ 117.00 crores (approx.) and on rejection of the said refund claim by the Asst. Commissioner they filed an appeal before the learned Commissioner (Appeals), who in turn, allowed their appeal vide order dated 08th June, 2018. Also, another refund claim amounting to ₹ 1.70 crore filed subsequently was allowed on 23.07.2018 and it was received on 31.07.2018. 6. Since the second refund claim dated 30th May 2017, where hearing was completed on 21st August, 2017 but the order was not received, the Appellant approached the Adjudicating Authority on 02nd August, 2018 to ascertain the status. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 2018 and thus the appeal filed before the learned Commissioner (Appeals) on 04.09.2018 is not beyond the period of limitation prescribed under Section 35(1) of Central Excise Act, 1944; whereas the Hon ble Member (Technical) was of the opinion that further inquiry in the matter required to be carried out. 10. The learned Advocate, Shri Sunil Gupta advancing the argument on behalf of the Appellant has submitted that on receipt of a favourable Order in the Appeal against the rejection of first refund claim from the office of the Commissioner (Appeal) on 8th June, 2018, and also since their third refund claim for ₹ 1.70 crore was also sanctioned by the Assistant Commissioner on 23rd July, 2018, they approached the Adjudicating Authority to ascertain the status of the second refund claim filed on 30th May, 2017 for ₹ 9.34 crores, where the hearing was completed on 21.08.2017. They came to know that the order on the said refund claim was issued on 29th August, 2017. A copy of the same was requested on 03.08.2018 to initiate necessary action on the same, which was handed over to them on 06th August 2018 and also attested copy of the same was sent by speed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been sent in the said envelope as the window envelope cannot contain the Order in legal paper size. It is his contention that, however, there could not be any manipulation and forgery on the part of the staff on the record. He has further submitted to decide the case on merit. 13. I have carefully considered the submission advanced by both the sides and perused the records. 14. The limited issue involved in the present reference for determination is whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or the order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) of CEA, 1944, has been adhered to or otherwise. 15. The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post ER9241875719IN dated 01.09.2017 and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable. 20. I find that in their separate orders, Hon ble President and Hon ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range office for delivery. Considering the categorical affirmation of the Asst. Commissioner in the affidavit that the Order was handed over to the Range for further delivery to the Appellant and the speed post no ER9241875719IN mentioned in the division office register on the information of the range, Hon ble president after analysis of other circumstances arrived at the conclusion that the Order 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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