M/S. Rotomac Global Pvt. Ltd vs Cce & St-Kanpur

(Arising out of Order-in-Appeal No. 16&17-ST/APPl/KNP/2013 both dated 25/09/2013 passed by Commissioner (Appeals), Customs, Central Excise & Service Tax, Kanpur)

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. Rotomac Global Pvt. Ltd., Appellant

Vs.

CCE & ST-Kanpur Respondent

Appearance:

Present for the Appellant: Shri Mayank Jakhodia (CA)

Present for the Respondent: Shri B.B. Sharma, DR

Coram: Honble Mr. Manmohan Singh, Member (Technical)

FINAL ORDER NO. 50007/-50008/2015

Per: Manmohan Singh

The appellants have come in appeal against the Orders-in- Appeal No. 16&17-ST/Appl/KNP/2013 both dated 25/09/2013 Commissioner (Appeals) vide his order above did not entertain the appeals on ground of limitation. Appeals were held not maintainable. It was also referred that misleading facts were placed before Commissioner (Appeals).

2. Appellants have filed two appeals before the Commissioner (Appeal) against the Orders-in-Original no. (1) 31/ST/Ref/AC-D-III/13 dated 5/6/2013 relating to rejection of their refund claim for Rs. 5,54,597.77/- out of Rs. 6, 11, 214.77/- and (2) 32/ST/Ref/AC-D-III/13 relating to rejection of their refund claim for Rs. 2,68,965.08/- out of Rs. 11,88,240.08/-. The claims were rejected as claims were not filed within the stipulated time limit despite Orders-in-Original were handed over to their representative under the Provision of Section 85. Section 85 is reproduced:

Section 85. Appeals to the [Commissioner] of Central Excise (Appeals).-

(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).

(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.

(3) 

(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.]

3. Appellants have contended that the company was having a separate legal entity and was run by its Board of Directors and all the Management, business operations and routine affairs of the company. They contended that all notices, letters, orders and any other documents should be communicated, sent, handed over directly to the Directors of Board of Companies or to any person who was authorized by the Board of Directors. In the absence of above procedure, no communications were to be accepted as a due communication. He further stated that Shri Gaurav Tiwari was mere an employee of the company who has been authorized to submit their documents and receipt of the order on 26/06/2013 should not be considered as a proper delivery.

4. On the other hand, it is brought on record by the order of Commissioner (Appeals) that Superintendent Tax Range XXI, Customs, Central Excise & Service Tax Division III, Kanpur intimated by his office letter C. No. V (30)413/ST/Misc/R-XXI/D-III/12/Pt/6311 dated 03/09/213 that both the above said orders-in-original were received in person on 26/06/2013 by the appellants from the receipt section of the Range Office as is evident from the respective entry in the Letter Despatch Register, copy of the letter was extracted in the order itself.

5. Heard both sides and gone through the records. It is observed that both Orders-in-Original as referred above have duly been served on the representative of the Company. I am not convinced with the pleadings that orders should not have been handed over to Companys representative who have not been nominated through the Resolution of a Company. As it came out that Shri Gaurav Tiwari, employee of the Company has been interacting with the Central Excise Department by receiving and handing over of letters on behalf of the company Orders-in-Original were received by him after coming to the Range Officer on 26/06/2013. There is a misrepresentation by the appellants that Orders-in-Original were actually received on 28/06/2013 in place of 26/06/2013 in contra to the factual position. Commissioner (appeals) has given the portion in para 4 of his order which is reproduced for ready reference:

The appeal against the Order-in-Original in question should have been filed by 25/08/2013 whereas the appeal in question has been filed on 27/08/2013. I observe that an appeal may be allowed to be presented within a further period of one month only when the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months. In this case, the act of beguiling and misleading the date of receipt as 28/06/2013 in place of 26/06/2013 in contra to the factual position, as emerging the aforementioned letter of the Range Office, confirms that at least there may not be any cause to be shown by the appellant in this case which may be assumed to have prevented him from filing the appeal in time and this being the reason, they have deliberately altered the date of receipt of the subject Order-in-Original appealed against in declaring it in the form of appeal so as to show the filing of appeal within the prescribed time limit of two months.

6. From the above, it is observed that their appeals were dismissed by the Commissioner (appeal) on the ground of limitation as appeals should have been filed on 25/08/2013 whereas those were filed late, i.e., on 27/08/2013. There has been misrepresentation on the fact of date of receipt of Orders-in-Original. Commissioner (appeal) also held that no reason for late filing of the appeals was brought on record by the appellants. No specific request for condonation of delay was made. Even issue of condonation of delay was not looked into by the Commissioner (appeal) as in the main portion of the appeals, only request relating grant of refund to the appellants was made.

7. In view of the above, I find force in the Commissioner (appeal) order justifying dismissal of their appeals which have been filed beyond limitation and thus not maintainable. I also do not find any valid reason for intervention as Orders-in-Original were duly handed over to the Companys representative who has been acting as interface between department and the company. Otherwise also, no resolution was warranted for nominating person to receive letter as same person has been dealing with the department. This contention is raised only to cover up their misrepresentation. Specific act of misrepresentation does not justify that orders received by the representative should not be considered as due service. Also, misrepresentation/fraud vitiates everything.

8. In view of the above, both appeals are rejected and Commissioner (appeal)s Orders-in-appeal are upheld.

(Manmohan Singh) Member (Technical)

RITU

4

Appeal NO. ST/60318 & 60319/2013-ST (SM)