9911796707
TMI Blog2005 (8) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... Wash, Pond's Oil Control Face Wash, Vaseline, Perfumed Pomade (Hair Fixer) and Vaseline Prickly Heat Lotion. 3. The appellants filed classification declarations in respect of the following products manufactured by them. 1. Pond's Face Wash 2. New Pond's Moisturizing Face Wash 3. Mew Creamy Pond's Moisturizing Face Wash 4. Vaseline Intensive Care Prickly Heat Lotion 5. Pond's Oil Control Face Wash 6. Vaseline Petroleum Jelly - Perfumed Pomade (Hair Fixer). 4. The Asstt. Commissioner, Central Excise, Chromepet Division, Chennai, issued Show Cause Notices in respect of four of the above products seeking to classify them differently than the classification declaration submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before the Commissioner of Central Excise (Appeals), Chennai on 9-9-2002. The Commissioner (Appeals), without appreciating the fact that order copy was received by the appellants on 11-7-2002, mechanically dismissed the appeal as time barred. Thereupon, the appellants preferred an appeal before the Tribunal vide Appeal No. E/2746/2003. The matter was remanded back with a direction to hear the appeal on time bar and decide the appeal in accordance with law. The appellants appeared before the Commissioner and submitted reply to the application filed by the Dy. Commissioner and further canvassed that they did not receive Order-in-Original dated 30-4-2002. The Commissioner (Appeals), Chennai, proceeded to pass Order No. 47/2004 dated 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling appeal be computed from the month of May 2002, which would result in the operation of time bar and being beyond the powers of condonation of delay by CCE (Appeals), the appeal would be liable for dismissal. 8. The ld. Commissioner (Appeals) having observed the service of Order-in-Original by ordinary post in the month of May 2002 (as admitted by the appellants as Excise file shown the same) and further commenting that the officers have committed lapse by not following the provisions of Section 37C of the Central Excise Act, 1944 and relying on the decisions of M/s. A. Tosh Sons v. Asstt. Collector - 1992 (60) E.L.T. 220 (Cal.) Page 33 and M/s. Kohinoor Cane Crusher v. Addl. Secretary - 1991 (52) E.L.T. 360 (All.), dismissed the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be served in the manner provided under clause (a). (c) where it cannot be served in the manner provided under clauses (a) and (b) by affixing the same on the notice board of the office or authority which passed such decision or issued summons. Sub-section (2) of Section 37C of the Act is a deeming provision for service of every decision or order on the date when it is tendered or delivered by post or affixed with manner provided in sub-section (1). 10. The ld. Commissioner appears to have based his conclusion on the deeming provision of service of copy of decision by delivery by post (ordinary post) in the month of May 2002 as found in the enquiry report. The words used in sub-section (2) as "Delivery by post" shall mean send ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeal. Therefore, it is to be held that from the date of knowledge and receipt of the copy of order, the appeal is within the period of limitation. The ld. Commissioner failed to understand the implication of the above provision and technically dismissed the appeal as time barred though it was remanded with the said purpose. In our considered view, the appeal filed by the appellants before the Commissioner (Appeals) was within time. Accordingly, we direct the ld. Commissioner (Appeals) to decide the appeal on merits. 11. The stay petition filed along with the appeal is also disposed of accordingly as there exits prima facie case and in view of the fact that the appellants have already furnished Bank Guarantee of Rs. 50,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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