M/S Vaishnavi Power Tools Pvt Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 274/2007 dated 24/12/2007 passed by THE Commissioner of Central Excise (Appeals), Bangalore]

For approval and signature:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes

M/s VAISHNAVI POWER TOOLS PVT LTD 43/1, 1ST FLOOR, ADJACENT TO UNION BANK OF INDIA, TUMKUR ROAD, YESHWANTPUR, BANGALORE. Appellant(s) Versus Commissioner of Central Excise, BANGALORE-II PB 5400, CR BUIDING, QUEENS ROAD, BANGALORE - 560001. Respondent(s)

Appearance:

Mr. A.S. MONNAPPA NO.128, 3RD STAGE, VINAYAKA LAYOUT, VIJAYANAGAR, BANGALORE For the Appellant Mr. Pakshirajan, A.R. For the Respondent

Date of Hearing: 09/07/2015 Date of Decision: 09/07/2015 CORAM:

HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER

Final Order No. 21529 / 2015

After hearing both the sides, I find that the Commissioner (Appeals) vide his impugned order has dismissed the appeal on the point of limitation by observing that the impugned order was passed on 18.8.2005 and the appeal was filed on 2.4.2007 and the Commissioner (Appeals) has no powers to condone such a huge delay. He has further observed that the order-in-original was sent by Registered Post and was received back by Revenue. Thereafter, the Revenue fixed a copy of the order passed by the original adjudicating authority on the appellants premises under the cover of a Mahazar on 08.1.2006 and as such the date of communication should be considered as 8.1.2006.

2. Learned advocate appearing for the appellant draws my attention to the mahazar drawn at the premises of the said appellant on 8.1.2006. For better appreciation, the contents of the said mahazar are reproduced below :-

.The said Superintendent introduced himself to us and informed that he wanted to conduct certain enquires about the said premises and its activities for which we readily consented. The said Superintendent took us to the above cited premises, on enquiry with the Security available, the security has informed us the said premises pertains to M/s RNS Groups, the building where M/s Vaishnavi Power Tools Pvt. Ltd was functioning has been demolished and a new building is coming up. Hence it is noticed that no machinery or infrastructure was found and no worker was also available for enquiry about the activities of the said unit. The said Superintendent enquired about the whereabouts of M/s Vaishnavi Power Tools Ltd. and proprietor Mr. N. Srinivas with the security, he informed that he was not at all working with M/s Vaishnavi Power Tools Pvt. Ltd. and he do not know any thing about the said Unit or the person. Thereupon we proceeded to the neighbouring unit i.e. M/s Electrex (India) Ltd., who was job worker earlier to the subject unit. Enquires made with Mr. A. Kumaravel, General Manager (Finance) of M/s Electrex (India) Ltd. and he informed that he do not know about M/s Vaishnavi Power Tools Pvt. Ltd. and where it is shifted. Mr. Kumaravel, General Manager (Fin.) also informed that he do not know the whereabouts of Mr. N. Srinivasa and residential address and he informed that at present whether the Unit is existing or not, not known and he did not come across with Mr. N. Srinivasa. Thereafter, the said Superintendent informed us that he has got an OIO No. 63/2005 dated 18.8.2005 passed by the Assistant Commissioner of Central Excise, E-1 Division, Bangalore on M/s Vaishnavi Power Tools (P) Ltd., situated in the said premises and the same has to be served on the unit and that since the said unit is not existing in the said premises and the present address is also not known, he intends to paste the same on the wall of the said premises and requested us to witness the same. Accordingly he pasted the said Order on the wall of the vacant premises in our presence for which we appended our signature on the order. The entire proceedings took place in our presence, which started at 14.20 hours on 8.1.2006 and completed at about 17.20 hours peacefully.

It is the contention of learned advocate that reading of mahazar proceedings clearly reveals that the appellant was not functioning from the said premises on account of demolition of the building and as such the affixing of the order on the premises of the building was an empty formality. It is only subsequently, when they were served with recovery notice, at the new address of Shri N. Srinivasa, they came to know about passing of the order and immediately approached the Revenue. A copy of the order was procured on 2.2.2007 and the appeal was filed on 02.4.2007 i.e. within the limitation period from the date of communication. Learned advocate also draws my attention to the another order of the Tribunal in the case of M/s Hitech Spares and Accessories Pvt. Ltd. [Final Order No. 22435/2014 dated 18/7/2014] wherein the order passed by the original adjudicating authority in that case was also affixed on the same premises as that unit was also working from the same premises i.e. that of the present appellant. The wordings of mahazar contained in that case as also in the present case are identical. The Tribunal observed that the mahazar reveals that the unit was not existing at the relevant premises and as such, the order of the Commissioner (Appeals) dismissing the appeal on limitation was set aside and the matter was remanded to the Commissioner (Appeals) for decision on merits.

3. Inasmuch as in identical circumstances, the Tribunal has already held in the case of M/s Hitech Spares and Accessories Pvt. Ltd. that pasting of the order at old premises of the company cannot be held to be a valid service of the order, by following the same, I set aside the present impugned order and remand the matter to the Commissioner (Appeals) for decision on merits without raising the issue of limitation. The appeal is allowed in above terms.

(Pronounced in open court)

(ARCHANA WADHWA) JUDICIAL MEMBER /vc/