Whether condonation of delay in filing appeal is allowed when order was not served to the assessee on time?

PJ/CASE LAW/2016-17/3048

Case:ADF FOODS LTD. Vs COMMISSIONER OF CENTRAL EXCISE, NASHIK
Citation:2015 (325) E.L.T. 922 (Tri. - Mumbai)
Issue: Whether condonation of delay in filing appeal is allowed when order was not served to the assessee on time?
Brief Facts: The appellant which is 100% EOU is in appeal against Order-in-Appeal passed by the Commissioner of Central Excise & Customs (Appeals), Nashik. By the impugned order the appeal has been dismissed on limitation without entering into the merits.
The order denying refund dated 2-4-2009 was issued on 3-4-2009 and the same was dispatched by speed post on 16-4-2009. The appeal was filed on 21-8-2009 before the Commissioner (Appeals). The Commissioner (Appeals) in view of the dispatch of the order on 16-4-2009 assumed the date of receipt by the appellant on 18-4-2009.
Appellant’s Contention: The appellant states that the dispatch of order by speed post was not served on them. When the Excise Officer of the appellant, Mr. SB Deole went to the office of the Department sometime in June, 2009, he came to know of the passing of the Order-in-Original dated 2-4-2009 and accordingly he collected the said order. It is submitted that the time limit to file appeal will start from the date of knowledge and receipt of the order, being 23-6-2009. If limitation is counted from 23-6-2009 the appeal is filed within the limitation period of 60 days.
The appellant urges that Section 37C of the Central Excise Act provides that any decision or order passed under this Act shall be served - 1(a) by tendering the decision, order, summons notice, by sending it by registered post with the acknowledgement due, to the person for whom it is intended or on his authorised agent, if any. The said clause 1(a) is amended by the Amendment Act that is Finance Act, 2013 wherein the words by speed post with proof of delivery or by courtier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 have been added. Thus the essential element in service by post is “acknowledgement due”. Admittedly there is no acknowledgement available on record of the Revenue supporting the assumed date of service by the Commissioner (Appeals). Accordingly it is further urged that the learned Commissioner (Appeals) has erred in assuming the date of service and dismissing the appeal on limitation and it is prayed that the impugned order be set aside with a direction to the learned Commissioner (Appeals) to hear and dispose of the appeal on merits.
Respondent’s Contention: The learned A.R. relies on the impugned orders. The learned A.R. further contends that tendering to the Post Office amounts to tendering of the assessee. He further relies on the ruling of the Hon’ble Apex Court in the case of Singh Enterprises v. Commissioner - 2008 (221)E.L.T. 163 (S.C.) wherein, Hon’ble Supreme Court held that where appeal is filed beyond a period of limitation and further beyond the period condonable by the Commissioner (Appeals), then such delay in appeal cannot be condoned by the Commissioner (Appeals) and further the condonation cannot be allowed for such delay under the provisions even by the higher courts.
Reasoning of Judgement: They hold that the Commissioner (Appeals) is in error in holding that the date of service on the appellant is 18-4-2009 without proof of the same available on record. That the impugned order is vitiated and is against the provisions of law. They accept the date of service of order as 23-6-2009 as claimed by the appellant in view of no facts on record to the contrary. Accordingly, they set aside the impugned order and direct the learned Commissioner (Appeals) to hear the appellant on merits and dispose of the appeal in accordance with law. The appellant is also directed to appear before the learned Commissioner (Appeals) with a copy of this order and seek an opportunity of hearing.
Decision: Appeal allowed by way of demand.
Comment: The gist of case is that the time limit for filing of appeal is to be taken from the date of service of order to the assessee. Without proof available on record that the order was served to the assessee, the order can’t be passed on the basis of limitation of delay in filing appeal.

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PJ/CASE LAW/2016-17/3048

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