M/S Acme Enterprises vs Cce, Kanpur

(Arising out Order-in-Appeal No. 81/ST/APPL/KNP/2013 dated 27.11.2013 passed by the Commissioner (Appeals), Central Excise & Service Tax, Kanpur)

For Approval & Signature :

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

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

2. Whether it would 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 Department Authorities?

M/s Acme Enterprises Appellant

Vs.

CCE, Kanpur Respondent

Appearance:

Md. Suhail, Advocate - for the Appellant

Shri Amresh Jain, D.R. - for the Respondent

Coram : Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 52530/2015

Per R.K. Singh :

Stay application along with appeal has been filed against COD cum order-in-appeal dated 27.11.2013.

2. The appellant has pleaded that it had already deposited the entire amount of service tax of Rs.1,97,810/- confirmed by the primary adjudicating authority and has also deposited interest of Rs.35,902/- . We therefore allow the stay petition and with the consent of both sides, take up the appeal.

3. We find that the Commissioner (Appeals) dismissed the appellants appeal on the ground that it was filed with a delay of 1170 days which was beyond the period of delay which could be condoned by the Commissioner (Appeals). The Commissioner (Appeals) observed that the order in original was issued on 11.11.2009. As regards the contention of the appellant that it received the order on 18.2.2013, the Commissioner (Appeals) countered to say that the order dated 11.11.2009 came to the appellants knowledge when it was asked to deposit the adjudged dues vide departments letter dated 17.8.2010 which it admittedly received on 25.8.2010 but even with reference to that date, the appeal was filed beyond the condonable delay.

4. The appellant has contended that it received the order only on 18.2.2013 and thereafter filed the appeal with a delay of only eight days beyond the normal period which is within the power of the Commissioner (Appeals) to condone. It further stated that when it received, the demand notice dated 17.8.2010, on 25.8.2010, it immediately wrote back on 26.8.2010 that it had not received the impugned order and requested for a copy to be able to file appeal.

5. We have perused the records and considered the contentions of the appellant. The Commissioner (Appeals) has not given any finding as to when the order was received by the appellant. It has only stated that it became aware of the order when it received the demand notice dated 12.8.2010 on 25.8.2010 and that even after that it only addressed letter denying the receipt of the impugned order and chose to maintain silence over the issuance of the order till 18.2.2013. But even if it is presumed that the appellant became aware of the impugned order on 25.8.2010, becoming aware does not tantamount to service of the order by Revenue. Section 37C of the Central Excise Act, 1944 mandates as to how the order is to be served. We find that the letter dated 17.8.2010 for recovery written by the Deputy Commissioner, Central Excise Division, Kanpur to the appellant referred to the adjudication order No. 74/ST/Ack-III/09 dated 6.11.2009 passed by the primary adjudicating authority and the appellant immediately on its receipt on 25.8.2010, vide letter dated 26.8.2010 wrote to the Deputy Commissioner, Central Excise, Division-II, Kanpur categorically stating that it had not received the said order and requested that a copy thereof may be supplied so that it could file appeal. Thus, Revenue has no evidence at all that the order of the primary adjudicating authority was ever served on the appellant. The presumption of service is effectively rebutted by the appellant by demonstrating that it took up the matter with Revenue for a copy of the order-in-original immediately on becoming aware on 25.8.2010 that such an order had been passed. It could not have filed appeal withouts a copy of the order merely on the basis of becoming aware of the same. It is pertinent to mention that while rejecting the appeal for delay in filing the appeal, onus was on revenue to show that the order had been served on the appellant. Even when the appellant requested for copy of the order, it was made available only on 18.2.2013 and the appellant filed appeal with a condonable delay of eight days.

6. In the light of the analysis above, we set aside the impugned the COD- cum- order- in- appeal and remand the case to the Commissioner (Appeals) to hear the appeal on merit after condoning the delay of eight days in filing the appeal.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

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