Delay in filing appeal condonable if revenue not able to prove that the order was served to the appellant on time.

PJ/Case law/2013-14/1886

Case:-S.A. ENGINEERING WORKS VERSUS COMMISSIONER OF C.EX., VADODARA-H

Citation:- 2013 (295) E. L. T. 236 (Tri- Ahmd.)

Brief facts:-This COD has been filed by the Appellant on the grounds that order-in-Appeal No. COMM'R (A) 74/VDR11/2011, dated 22/24-2-2011 was received by them only on 11-1-2012 when Range Superintendent contacted them for payment of dues. Applicant was intimated by their Consultant/Advocate that appeal is required to be filed within 3 months from the date of the order-in-appeal. The appellant accordingly approached the concerned authorities to provide a copy of OIA andafter receipt of the copy of COD, an appellant filed the appeal and COD application.

Appellant’s Contention:-The appellant submitted that there is no evidence with the department that the required OIA was received by the appellant in person or by any of his authorized person.

The advocate of the appellant argued that in view of Supreme Court’s Judgment in the case of Vinod S. Chakor Pvt. Ltd. [AIR 1990 SC 2158] it is not coming out as to whom the said OIA was delivered. The same issue before the Supreme Court was held in favour of the appellant on the reasoning that a notice received by appellant’s servant cannot be treated as a service upon the appellant. It is observed from the Postal Department that the said communication dated 14-10-2012 has been delivered on 25-2-2011. However it is not coming out from this communication as to whom this document was delivered. There are no signatures from the appellant produced by the Revenue to the extent that only appellant has received the said communication. Under the circumstances the law laid down by Supreme Court in (AIR) 1990 SC 2158 is squarely applicable to the facts and circumstances of this case. The same issue has been also been decided by the larger bench in the case of Marga Industries Ltd. Versus. CCE, Delhi [2008 (10) S.T.R. 81 (Tri.- LB)]where it was held that validity of dispatch by speed post without proof of delivery and simultaneous affixing of order on the notice board is not considered to be the proof of delivery.

Respondent’s Contention:- The Respondent also argued that as per communication dated on 14-10-2012 received from the Postal Department, the said OIA was delivered to the appellant on 25-2-2011. The judgment of CCE Ltd. V. Mohan Bottling Company Pvt. Ltd. [(2010) 255 E.L.T. 321 (P &H)] relied upon by appellant is not applicable in this case because appellant in that case failed to discharge the burden that order in question was not served upon them.

Reasoning of Judgment:-After hearing both the sides and persuing the record ,in the present case it has been brought out by the appellant that no acknowledgment has been produced by the Revenue to the effect that appellant or his authorized representative have received the said order. Appellant is not going to gain in any manner by not filing the appeal late if he has received OIA. Under the facts and circumstances of this appeal it has to be held that appellant first came to know about the OIA only on 11-1-2012 when the jurisdictional Range Superintendent contacted the applicant and the appeal in this case has been filed on 21-2-2012 and has to be considered as filed in time. Based on the above observations the COD filed by the appellant is allowed.

Decision:-Condonation of Delay application allowed.

Comment:- The crux of this case is that the order is required to be properly served on the assessee and it is even prescribed in law that the order or notice should be served by registered post only. Therefore, if the revenue department is not able to prove that the order was served to the appellant on time, the benefit of doubt would be extended to the assessee and the delay in filing of appeal may be condoned.

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PJ/Case law/2013-14/1886

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