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TMI Blog2023 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed by the statute, no prejudice has been caused to them by not giving them a notice regarding time-bar - the Commissioner (Appeals) decision cannot be faulted on this score. Whether the appeals filed by them were time-barred? - HELD THAT:- The issue raised by the appellant involves a question of fact and law. Although the issue of fact was examined by the learned Commissioner (Appeals) before coming to a conclusion it is found that the Tribunal being the last fact-finding authority, it is essential that the Appellants pleading should be examined for its correctness. It is seen that a document is deemed to be served by post by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. It is seen that a document is deemed to be served by post by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Copy of Form A and BIFR letter filed was filed by the Appellant to the Revenue Authorities DEPARTMENT PROCEEDINGS 25.02.2014 SCN issued for Wrong Availment of CENVAT Credit, shows the endorsement as despatched but there is no evidence such as postal Acknowledgement card have been furnished to show that the same has been received by the Appellant. 20.05.2016 Order in Original passed determining demand with interest and penalty, holding that photocopy of the Bill of Entry is not a valid document to claim CENVAT credit 29.06.2021 Writ Petition in WP No. 16061/2018 was filed before the Hon ble High Court challenging the Recovery Notice dated 14.06.2018 challenging the service of the orders and Show cause notices. The Hon ble Jurisdictional High court granted an Interim Stay during the Admission of Writ Petition and subsequently when the matter was taken up for final hearing on 29.06.2021, the Hon ble Jurisdictional High Court directed the petitioner to approach the competent authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment to furnish the copies of the Order in Originals and Show cause notices on 02.09.2021. In response the office of Commissioner of GST and CE, Pondicherry, issued Certified Copy of SCN and O-I-O on 27.09.2021 enabling the appellant to prefer appeal on 15.11.2021. The appeal was hence not time barred. They had a strong case on merits. She relied on the Order of the Hon ble Bangalore Tribunal in the case of Venkaterwara Power Projects Ltd. Vs. CCE, Central Excise Appeal No. 20007 of 2021 dated 18/01/2021, to state that it was for the Department to give proof of service of the order by the assessee in the absence of which the date of obtaining a copy of the order by the appellant will be considered as the date of receipt of order. She hence prayed that the matter may be remanded to the Commissioner (Appeals) for a decision on merits. 3.2 The learned AR representing Revenue has opposed the prayer and stated that it is clear from Departments letter dated 27/09/2021 that the SCN, PH intimation and Orders were despatched to the Appellant as per their address on record and hence there was no violation of the principles of natural justice if the appellant had not defended their case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been possible for the Commissioner (Appeals) to have come to a prima facie conclusion that the matter was time barred till the matter was heard out on facts. 5.3 Further the Appellant was aware of the statutory delay in filing the appeal as between the dates of the order and the date on which they had filed the appeals, for whatever reason. Since they were to assert before the Commissioner (Appeals) that the appeal was filed on time they should and would have come prepared to defend the matter as the reason for delay in filing the appeal was solely in their knowledge. The legal principle involved is that he who asserts should prove. Even Section 106 of the Indian Evidence Act., 1872 gives statutory recognition to this universally accepted rule of evidence as stated below: 106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him 5.4 The principles of natural justice are not a straight-jacket formula. It has been held by courts that whether in fact, prejudice has been caused to the person by not doing a certain action, has to be considered on the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch decision or order or issued such summons or notice. (2) 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).] 6.2 Since the issue regarding the service of SCN, PH letter and Final Orders are in dispute, I reproduce the Table contained in the Departments letter dated 27/09/2021 submitted by the Appellant, for easy reference. S. No. Name of the unit with RC No. Details of documents 1. M/s. Ankit Ispat, Unit- I, RS No. 57/2B, Nainikatalai Road, Polagam Village, Karaikal 1. Copy of SCN 6/2014 dt. 25.2.2014 (with dispatch seal) 2. Copy of PH intimation dated 12.6.2015 and 24.2.206 (with dispatch seal) 3. Copy of OIO 11/2016-CEx. of JC, Trichy, 20.5.2016 (with dispatch seal) 2. M/s. Ankit Ispat, Unit- I, RS No. 57/2B, Nainikatalai Road, Polagam Vil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truthful by claiming non-receipt of orders and has not come before the Tribunal with clean hands. 6.3 The record of finding of the learned Commissioner (Appeals) in this regard is relevant. Paras 7.3 to 7.5(b) of the impugned order is reproduced below. 7.3 At this juncture, it is pertinent to mention that on query during the personal hearing about their claim of non-receipt of SCNs and Orders, the appellant informed that the factory was closed and the same could have been served by the postal department but they were not sure as to who received the same and they came to know only after receipt of recovery notice. On specific query, out during the personal hearing as to how non-delivery of SCNs and orders can be substantiated when the proof of dispatch by registered A/D and acknowledgments for delivery as detailed as detailed in para 7.2 above have already been communicated to the appellant by the department, the only reply given was that they are not aware to whom the documents were delivered by the postal department. At this juncture, it is pertinent to mention that contrary to the clam of the appellant that the department was aware that the unit has been closed before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter purportedly given by the Appellant regarding having approached BIFR has no despatch details or acknowledgement of receipt by the Department, they are demanding postal acknowledgement from the Department for the documents despatched to them which has been supplied. (ii) They have not formally given the Department any alternate address for service of documents/ notice etc (iii) Postal acknowledgement for the receipt of some of the documents has been supplied by the Department to the Appellant. (iv) All the 5 Show Cause Notices have been issued to the Appellant between 21/06/2011 and 15/06/2015 much before the closure of the unit from 05/11/2015. (v) Although the whole issue arose from an Audit visit and objection raised by the Audit team, the Appellant has not shown due diligence to follow up on the matter with the Department, though the notices were issued to them much before the closure of their unit, as is expected of any compliant assessee. (vi) The department has given sufficient evidence both direct and circumstantial showing dispatch of the orders, hence adverse inference could be drawn against the Appellant for having failed to discharge the burden of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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