M/S Aafloat Textiles (India) Ltd vs Commissioner, Central Excise & Service ...

Appeal No.E/11158/2014 (Application No.E/Stay/11789/2014) [Arising out of OIA No.VAP-EXCUS-000-APP-380-13-14, dt.28.11.2013, passed by Commissioner of Central Excise & Customs (Appeals), Vapi]

M/s Aafloat Textiles (India) Ltd. Appellant

Vs

Commissioner, Central Excise & Service Tax, Vapi Respondent

Represented by:

For Appellant: Shri P.P. Jadeja, Consultant For Respondent: Shri Jitendra Nair, A.R.

For approval and signature:

Mr. P.K. Das, Honble Member (Judicial)

1. Whether Press Reporters may be allowed to see the No 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 Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

MR. P.K. DAS, HONBLE MEMBER (JUDICIAL)

Date of Hearing/Decision:09.01.2015

Order No. A/10045 / 2015, dt.09.01.2015

Per: P.K. Das

1. As the issue involved is in narrow compass, after disposing the stay application, the appeal is taken up for hearing.

2. After hearing both the sides and on perusal of the records, I find that the appeal before Commissioner (Appeals) was dismissed as time barred.

3. Learned Consultant appearing on behalf of the appellant submits that the Adjudication Order dt.19.03.2007 was not communicated to them. They have obtained the copy of the Order under RTI Act and filed the appeal on 10.09.2013. In this context, he drew the attention of the Bench to the relevant portion of the impugned order to substantiate that the appellant company was closed down and declared as sick by BIFR. The main contention of the ld.Counsel is that there was no service of the order as per Clause (a) of sub-section (1) of Section 37C of Central Excise Act 1944. It is submitted that affixing the copy of the order in the notice board in the premises under Clause (b) of Section 37C (1) of the said Act , 1944 would come after completion of service of the order by Registered Post with Acknowledgement Due as per Clause (a) of said section 37C(1) of the ACt. He relied upon the decision of Honble Mumbai High Court in the case of Amidev Agro Care Pvt.Ltd. Vs UoI  2012 (26) STR 299 (Bom.). He submits that admittedly, the appellant has not received the order and the appellant was under BIFR. Now, they would like to open the factory and therefore, the case may be leniently viewed.

4. On the other hand, the learned Authorised Representative appearing on behalf of the Revenue submits that the Section 37C(1)(a) of the said Act provides that the order shall be sent by tendering the order or sending it by Registered Post with Acknowledgement Due. He submits that in the present case, it is evident from the Panchanma dt.19.03.2007 that the order was served by tendering in person by Central Excise officers at the premises of the appellant company. Nobody was available there to receive the order and therefore, the copy of the order was affixed on the notice board at the factory gate of the appellant company.

5. After considering the submissions of both the sides and on perusal of the records, I find force in the submissions of the learned Authorised Representative for the Revenue. It is seen that the Clause (b) of Section 37C (1) of the Act provides that any decision or the order passed under this Act shall be served by tendering the order or by sending by Registered Post with Acknowledgement Due. In the present case, it is seen that the Panchnama dated 05.06.2008 that Central Excise officers tendered the order in person at the factory premises of the appellant company. But, the security informed that the factory is closed down. So, the said officer affixed a copy of the order at the factory gate, which is within the purview of the service of order or decision, order under Section 37C of Central Excise Act 1944. I find that this fact was not disputed by the applicant.

6. Honble Supreme Court in the case of M/s Singh Enterprises Vs CCE Jamshedpur  2008 (221) ELT 163 (S.C.) held that the Commissioner (Appeals) is not empowered to condone the delay beyond the prescribed period of limitation.

7. In view of the above discussion, I do not find any reason to interfere in the order of the Commissioner (Appeals). Accordingly, the appeal filed by the appellant is rejected. Stay application is disposed of.

(Dictated & Pronounced in Court)

(P.K. Das) Member (Judicial)

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