M/S Adf Foods Ltd vs Commissioner Of Central Excise, Nashik

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPEAL NO. E/471/10  MUM

(Arising out of Order-in-Appeal No. AKP/128/NSK/2009 dated 30.12.2009 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

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

M/s ADF Foods Ltd.

: Appellant Versus

Commissioner of Central Excise, Nashik : Respondent

Appearance Shri Vinod Awtani, C.A. : For Appellant Shri Ashutosh Nath, Asst. Commissioner (A.R.)

: For Respondent

CORAM: HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing : 09.04.2015 Date of Decision: 09.04.2015

ORDER NO.......................................................

Per: Anil Choudhary:

The appellant which is 100% EOU is in appeal against Order-in-Appeal No. AKP/128/NSK/2009 dated 30.12.2009 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.

2. According to the facts taken notice of in the impugned order, the order denying refund dated 2/4/09 was issued on 3/4/09 and the same was dispatched by speed post on 16/4/09. The appeal was filed on 21/08/09 before the Commissioner (Appeals). The Commissioner (Appeals) in view of the dispatch of the order on 16/4/09 assumed the date of receipt by the appellant on 18/4/09. It is evident from the order that there is no basis for such assumption. The appellant further states that the said 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 2/4/09 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 23/6/09. If limitation is counted from 23/6/09 the appeal is filed within the limitation period of 60 days.

3. The learned Counsel for 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, according to the learned Counsel 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.

4. 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 Vs. Commissioner - 2008 (221) ELT 163 (S.C.) wherein, Honble 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.

5. Having considered the rival contentions, I hold that the Commissioner (Appeals) is in error in holding that the date of service on the appellant is 18/4/09 without proof of the same available on record. That the impugned order is vitiated and is against the provisions of law. I accept the date of service of order as 23/6/09 as claimed by the appellant in view of no facts on record to the contrary. Accordingly, I 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.

6. Thus, the appeal is allowed by way of remand in above terms.

(Pronounced in open Court)

(Anil Choudhary)

Member (Judicial)

Sp

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