2005 (10) TMI 141

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..... d products. This deemed credit was disputed by the departament as being not correctly availed. He further submits that on 5-8-99, the appellants' Consultant appeared for a personal hearing before the adjudicating authority and made submissions. The adjudicating authority did not accept the appellants' contentions and confirmed the demand and imposed penalty on the appellants vide his Order dated 5-11-99. He submits that the appellants were not informed about the order and the Order-in-Original was not received by appellants, and they came to know of the order being passed for the first time through Range Office on or about 25-7-2000. The appellants wrote a letter on the same day informing the details of the hearing and non-receipt of the Or .....

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..... hat the appellants have been corresponding with the department from 25-7-2000, followed up by many letters, requesting the adjudicating authority to grant him a copy. The department instead of giving a copy of Order-in-Original wrote back on 13-2-2001 contents of which are reproduced below :- "Subject : Recovery of Rs. 114191/- confirmed vide A.O. NO. 399/99 dated 5-11-99 - Reg. In context to the above, it is to inform you that the above demand of Rs. 114191/- confirmed against you, and a penalty of Rs. 3000/- was imposed against you vide Adjudication Order (Order in Original No. 399/99 dated 5-11-99. The said order was dispatched through R. POST to you with dispatch Nos. 6797 6800 dated 5-11-99. A copy of the R.P./A.D. is enclosed here .....

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..... before them as they have to prove a negative i.e. the copy of the orders were not received by them. The learned advocate has rightly emphasized that the Appellant can deny the receipt of the orders only by filing an affidavit of the officer of the company. This is what has been done by them." I find that in this case also the appellants' Director has filed an affidavit stating clearly that the appellants had not received O.I.O. till 17-3-2001 Further, I find that the O.I.O. is confirming a demand and imposing a penalty, and the appellants will not have any advantage or gain by not filing an appeal against the O.I.O. belatedly. I, therefore, hold that the Revenue has failed in establishing that the O.I.O. is communicated to the appellants .....

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