Shri Anand Saraf, Director vs C.C.E. & S.T. Raipur

Customs Excise and Service Tax Appellate Tribunal6 February 2015

CitationAppeal No. E/2179 & 2180/2012-EX(SM)

Ratio decidendi

The rule this decision rests on

Where the statutory service of an order is shown to be unproven by the department, in that the dispatch of the order by speed post is not supported by an acknowledgement on record, and no binding decision of the jurisdictional High Court governs the point, the appellate limitation period under the Act does not run from the date of dispatch; it runs from the date on which the assessee actually received the order, and an appeal filed within the prescribed period from that date is within time. Where the Commissioner (Appeals) has dismissed an appeal as time barred without deciding the merits, and the appellate authority finds the appeal within time, the proper course is to set aside the impugned order and remand the matter to the Commissioner (Appeals) for decision on the merits.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVICE TAXAPPELLATE TRIBUNAL, NEW DELHIPRINCIPAL BENCH, COURT NO. IIAppeal No. E/2179 & 2180/2012-EX(SM)

[Arising out of Order-in-Appeal No. 68&69/RPR-I/2012 dated 23.04.2012 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see 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 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 Departmental authorities?

M/s. Shiv Shakti Steels Pvt. Ltd.

Shri Anand Saraf, Director .Appellants

Vs.

C.C.E. & S.T. Raipur .Respondent

Appearance:

Shri A.K. Mishra, Advocate for the Appellants

Shri V. P. Batra, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 06.02.2015

FINAL ORDER NO. 50359-50360/2015-EX(SM)

Per Ashok Jindal:

The appellants are in appeals against the impugned order wherein their appeals have been dismissed as time barred by the Ld. Commissioner (A).

2. The facts of the case are that the order-in-original was passed on 30.03.2010 and against that order an appeal was filed by the appellant before the Ld. Commissioner (A) on 23.04.2012 with a delay of 658 days. The Ld. Commissioner (A) dismissed the appeal as time barred. Aggrieved from the said order appellant is before me.

3. Ld. Consultant for the appellant submits that the appellant did not received the order in original and they have received the order-in-original only on 17.01.2012 and thereafter, within the time limited prescribed under section 35(B) of the Central Excise Act, 1944 they have filed the appeal. Therefore, their appeal is within time. He further submits that they have also sought a report from the concerned department under RTI and it was informed that the order was dispatched through speed post but no acknowledgement was placed on record. He further submits that during the impugned period services through speed post is not a valid service as per section 37 (C) of the Central Excise Act 1944. In these circumstances, impugned order be set aside. To support his contention he relied on the decision of Honble High Court of Bombay in the case of Amidev Agro Care Pvt. Ltd. Vs. UOI-2012 (26) S.T.R. 299 (Bom).

4. On the other hand Ld. AR oppose the contention of the Ld. Counsel and submits that report was sought and as per the report the order was sent through speed post that is mentioned in the record placed before this Tribunal. He further submits that the services through speed post is a valid service as held by Honble High Court of Orissa in the case of Jay Balaji Jyoti Steels Ltd. Vs. CESTAT reported in 2015-TIOL-164-HC-Orissa-ST and in the case of Mirzapur Electrical Industries Ltd. Vs. C.C.E. Allahabad reported in 2014 (300) E.L.T. 496 (All).

5. Heard the parties. Considered the submissions.

6. In this case report was sought from the department and it is agreed that order was sent through speed post but no acknowledgement thereon is placed on record. Further, there are contrary views of different High Courts on the issue. But there is no decision of the jurisdictional High Court on the issue to be followed by me. In these circumstances and in the absence of any acknowledgement on record of sending the order through speed post I hold that service was not done properly on the appellant. Therefore, as submitted by the appellant that they have received the adjudication order on 17.01.2012 and thereafter they have filed appeal before the Ld. Commissioner (A) within 60 days thereof. Therefore, I hold that appeals filed before the Commissioner (A) by the appellant were within time. As the Ld. Commissioner (A) has not considered the merits of the case, therefore, it would be in the interest of the justice and remand matter back to the ld. Commissioner (A) to decide issue on merits.

7. With these terms impugned order is set aside and appeal is allowed by way of remand.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

E/2179 & 2180/2012-EX(SM)

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