C.C.E. Delhi I vs M/S Bharat Ispat

Excise Appeal No. E/50362-50363/2014-E[SM] [Arising out of Order-In-Appeal No. 151-152/CE/DLH/2013 dated 24.09.2013 passed by CCE (Appeals) Delhi-I]

For approval and signature: Hon'ble Mr. S.K. Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E. Delhi  I ...Appellant C.C.E. Delhi  I

Vs. M/s Bharat Ispat Respondent

M/s Bharat Ispat

Appearance:

Mr. Vinod Srivastaw (Advocate) for the Appellant Mr. G R Singh, DR for the Respondent

CORAM:

Hon'ble Mr. S.K. Mohanty, Member (Judicial)

Date of Hearing/ Decision. 07.08.2015

Final Order No. 54252-54253 /2015_ Per S K Mohanty:

Brief facts of the case are that being aggrieved with the Adjudication Order dated 24.08.1998, the respondent herein had preferred appeal before the Commissioner (Appeals), which was rejected on the ground of limitation. Thereafter, the matter was challenged before the Tribunal in two occasions. Finally, the Tribunal vide order dated 14.09.2012 has set aside the order dated 31.08.2009 passed by the Commissioner (Appeals) and remanded the matter to him for fresh decision on the point of limitation, for consideration of the date of communication of the Adjudication Order on the respondent. Pursuant to the remand directions contained in the order dated 14.09.2012, the Commissioner (Appeals) completed the denovo proceedings and passed the order dated 24.09.2013, holding as under:

In this case, registered AD post mode was not adopted by the department for serving the appellants with copy of the Order-in-Original. There is also no evidence on record to show ha the copy of the order-in-original was physically tendered to the appellants or their authorized agent. Thus the mandate of Section 37C(1)(a) has not been followed by the Department. Accordingly, the appeal is taken as filed within time limit and the matter is being taken up for decision on merit.

1.2 With regard to the merits of the case, the Commissioner (Appeals) vide the said impugned order has held that since the duty paid character of the disputed goods, their receipt and utilisation in the manufacture of the final product is not is dispute, the Modvat Credit cannot be denied to the respondent herein for the procedural lapses of non-filing the declaration within the stipulated time frame. Feeling aggrieved with the said impugned order dated 24.09.2013, the Revenue-appellant has preferred these appeals before the Tribunal.

2. The Ld. DR, Sh. G R Singh appearing for the Revenue reiterated the grounds of appeals raised in the Appeal Memorandum and further submits that the preamble of the adjudication order clearly shows that the said order has been communicated to the Respondent through registered post with AD. It is his further submission that since the order has been sent through registered post with AD, non-receipt of the same as claimed by the respondent will not support its case and since the appeals have not been filed within the stipulated time frame from the date of issuance of the order, the same is clearly barred by limitation of time.

3. Per contra, Sh. Vinod Srivastaw, the Ld. Advocate appearing for the Respondents submits that Section 37C of the Central Excise Act, 1944 mandates sending of notice, order etc., through registered post with AD. According to the Ld. Advocate, since the Adjudication order was not sent through the mode prescribed under the statute, the same cannot be construed as having been served on the appellant and the Commissioner (Appeals) has rightly taken cognizance of the date of actual receipt of the adjudication order, and entertained the appeal filed before him. Thus, there is no infirmity in the order passed by the Commissioner (Appeals). He further submits that upon proper verification of the documents regarding the duty paid character and receipt of the disputed goods in the factory, since the Commissioner (Appeals) has allowed the Modvat benefit to the Respondent, the Appeal filed by the Revenue is not sustainable.

4. Heard the Ld. Counsel for both the sides and perused the records.

5. I find from the available records that the Adjudication order dated 24.08.1998 has not been sent through registered post with AD, which is the proper mode of sending the notice order as envisaged in Section 37C of the Central Excise Tariff Act, 1944. With regard to the submissions of the Ld. DR that the preamble of the adjudication order indicates that the order has been sent through registered post with AD, I am of the view that the preamble of the said order is a cyclostyle copy which is attached to all the adjudication orders passed by the Departmental Offices. In absence of any specific evidence being produced by the Department that the order has been sent through registered post with AD, I am of the view that the stand taken by the Revenue is not maintainable, and thus, there is no infirmity in the impugned order in deciding the appeal of the Respondent on merits. With regard to availment of modvat benefit on the disputed inputs, I find that the Commissioner (Appeals) has given a specific finding regarding the receipt and utilization of the disputed goods in the factory of the Respondent for the intended purpose. Since, the receipt and utilization of the disputed goods are not in dispute, the requirement of filing declaration is merely a procedural lapse, for which the substantive right confirmed under the statute for the modvat benefit cannot be whittled down.

6. Therefore, I do not find any infirmity in the impugned order passed by the Commissioner (Appeals) and as such, the appeals filed by the Revenue are dismissed.

(Dictated and pronounced in open court)

(S. K. Mohanty) Member(Judicial) Neha 2 | Page E/50362-50363/2014