Osa Shipping Pvt. Ltd vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No. ST/S/45/2012, ST/COD/41509/2014 & ST/65/2012

[Arising out of Order-in-Appeal No.163/2009 (MST) dt. 15.12.2009 passed by the Commissioner of Central Excise (Appeals), Chennai]

OSA Shipping Pvt. Ltd. Appellant

Versus

Commissioner of Central Excise, Chennai Respondent

Appearance:

Shri R. Lakshmi Ratan, Advocate For the Appellant

Shri M. Rammohan Rao, DC (AR) For the Respondent

CORAM :

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing/Decision : 03.02.2015

FINAL ORDER No.40146/2015

Per D.N. Panda

1. Ld. counsel says that because of change of address, the order passed by learned Commissioner (Appeals) on 15.12.2009 could not be served on the appellant. Therefore, appellant by letter dt. 13.12.2011 made a prayer to provide certified copy of the Order-in-Appeal. That being provided on 12.1.2012, appellant filed appeal before the Tribunal on 3.2.2012.

2. According to appellant, the reasons stated above has resulted in delay in filing the appeal although that was due to be filed on 14.3.2010 taking into account the date of despatch of the order from the office of the learned Commissioner (Appeals). The appellant had no mala fide. But due to change of office address he was prevented to get the appellate order and failed to submit the appeal memorandum before Tribunal by the above date. Counsel also submits that in all fairness the delay may be condoned because appellant may suffer if its appeal stands dismissed for no merit in COD application.

4. Revenue submits that it is also laid down principle by Hon'ble High Court of Madras that once the notice has gone by registered post it is presumed to have been served unless contrary is proved in the case of B. Bhoormal Tirupati Vs Addl. Collector of Customs, Madras  2000 (126) ELT 65 (Mad.).

5. Opposing above proposition of Revenue, appellant submits that Tribunal in the case of Margra Industries Ltd. Vs CC New Delhi  2008 (10) STR 81 (Tri-LB) has held that delay is condonable unless the impugned order is served on the appellant.

6. We are conscious that any dismissal of appeal at the threshold may turn an meritorious appeal into demeritious. So also the appellant shall be deprived of principles of natural justice. While we appreciate the principle laid down by apex court in Collector, Land Acquisition Anantnag and another Vs MST Katiji and others - 1987 (28) ELT 185 (SC) and in N.Balakrishnan Vs M. Krishnamurthy -2008 (228) ELT 162 (SC) and the reason stated in the dates and events chart filed by appellant, it does not appeal to the common sense how a litigant could be silent after participation in a proceeding without being for vigilant of outcome of the proceeding to act expeditiously for redressal of any wrong done to him. In the absence of vigilant attitude of the appellant, it is not possible to allow the application for condonation of delay for which that is dismissed. Consequently, stay application and appeal stand dismissed.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

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