M/S. A.K. Timbers vs Commr. Of Central Excise & Service Tax

(Arising out of the Order-in-Appeal No.63/DIB/CE(A)/GHY/13 dated-01/11/2013 passed by the Commissioner, Customs & Central Excise (Appeals), Guwahati)

For approval and signature of:

DR. D.M. MISRA, HONBLE JUDICIAL MEMBER

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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 ?

M/s. A.K. Timbers

APPELLANT(S) VERSUS Commr. of Central Excise & Service Tax- Dibrugarh RESPONDENT(S) APPEARANCE

Sri S.P. Siddhanta, Consultant

FOR APPELLANT(S) Sri A. Roy, Supdt. (A.R.) FOR THE RESPONDENT(S)

CORAM: DR. D.M. MISRA, HONBLE JUDICIAL MEMBER

DATE OF HEARING & DECISION : 16/02/2015 ORDER NO.FO/A/75097/2015 Per DR. D.M. MISRA

This is an application seeking waiver of pre-deposit of CENVAT Credit of Rs.88,333/- and penalty of Rs.85,760/- imposed under Rule 15 of CENVAT Credit Rules, 2004 read with Section 11AC of CEA, 1944.

2. At the outset, the Ld. Consultant for the applicant submits that the Ld. Commissioner (Appeals) has dismissed their appeal on the ground of delay. He submits that the order-in-original dated 29/09/2011 was received by them only on 05/03/2013 and the Appeal was filed before Ld. Commissioner(Appeals) on 02nd May, 2013 i.e. within the statutory limit of 60 days. He has categorically submitted that the order-in-original was not received earlier. He submits this fact can be established before the Ld. Commissioner(Appeals)

3. Ld. A.R. for the Revenue on the other hand submits that there was a categorical finding by the Ld. Commissioner at para 5 of the impugned Order that the applicant could not produce necessary evidence before him to substantiate their claim of non-receipt of the order-in-original in spite of sufficient opportunity was given to them. He submits that on the direction of the Tribunal he has requested the respective Commissonerate ascertain the date of communication of the Order-in-Original, however, due to re-organisation of the Commissionerate, the report is yet to be received. He has no objection in remanding the case to Ld. Commissioner (Appeal) for consideration of the evidences on record.

4. After hearing both sides for some time, I find that the appeal itself could be disposed off at this stage. Consequently, after waiving the requirement of pre-deposit adjudged, I take up the appeal for disposal with the consent of both sides.

5. I find that the Ld. Commr. (Appeals) has dismissed the appeal observing inordinate delay of 570 days in filing the appeal before him. The date of communication of the Order-in-Original has been disputed by the Appellant. The Ld. Consultant submits that if an opportunity is given, they could establish before the Ld. Commr. (Appeals) that the order was not communicated to them earlier resulting into non-filing of the Appeal in time. In the interest of justice, the matter deserves to be remitted to the Ld. Commissioner (Appeals) to examine the evidences on record and the evidences that would be produced by the Appellant before him in ascertaining the date of the communication of the Order-in-Original. Accordingly, the impugned order is set aside and the appeal is remitted to the Ld. Commissioner (Appeals) to decide the issues afresh. Both sides are at liberty to produce the evidences in their favour. All issues are kept open. Appeal is allowed by way of remand. S.P. disposed off.

(Dictated and pronounced in the open Court) Sd/- 19/02/2015 (D.M. MISRA) JUDICIAL MEMBER k.b/-

Excise Appeal No. 75180/2014 4