Shri. Sanjay Mittal vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. SB (98-99) 98-99/MI2009 dtd. 9/11/2009 passed by the Commissioner (Appeals) Central Excise, Mumbai Zone I]

For approval and signature:

Honble Mr. Ramesh Nair, 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 : 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? =======================================================

Shri. Sanjay Mittal : Appellants

VS

Commissioner of Central Excise, Mumbai-I : Respondent

Appearance

Shri. Nimesh Mehta, Advocate for the Appellants Shri. Sanjay Hasija, Superintendent (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 23/6/2015 Date of decision: 23/6/2015

ORDER NO.

Per: Ramesh Nair

The matter is listed for curing the defect in the appeal inasmuch as Registry through show cause notice has pointed out that the impugned order was passed on 9/11/2009 and the present appeal was filed on 24/1/2014 i.e. almost after more than four year.

2. Shri. Nimesh Mehta, Ld. Counsel for the applicant submits that they had not received the order dated 9/11/2009, however on their request department has served order copy vide letter dated 20/11/2013 and thus they received order copy on 23/11/2013. It is his submission that from the date of receipt of order, the appeal was filed on 24/1/2014 i.e. within the permissible time limit for filing the appeal before this Tribunal.

3. Shri. Sanjay Hasija, Superintendent (A.R.) appearing on behalf of the Revenue submits report from the concern office of the Commissioner(Appeals) regarding the dispatch of the order, according to which he produced dispatch register and the record of speed post by which it can be seen that the order was dispatched on 9-10/11/2009. This evidence is sufficient to establish that the order has been served to the appellant in November, 2009 itself and accordingly there is delay of more than four years, therefore the appeal cannot be accepted.

4. Countering the said evidences and submission of the Revenue, Ld Counsel submits that whatever evidences was produced, it shows only dispatch of the order, however there is no evidence to show that order was delivered to the appellant in month of November 2009 or subsequently. Therefore date of receipt of order copy on the basis which this appeal was filed may be taken as date of service of the order and accordingly there is no delay in filing the appeal.

5. I have carefully considered the submissions made by both sides and perused record submitted by the Ld. A.R.

6. I find that the record of dispatch of the order only shows that order has been dispatched by the speed post however there no evidence was produced regarding the delivery of the order, therefore it can not be concluded that order dispatched on 10/11/2009 has been delivered to the appellant. However, I observed that applicant participated in the adjudication and up to the stage of filing of the appeal before the Commissioner (Appeals) but did not bother about the out come of the appeal filed before the Commissioner (Appeals) for long period of more than four years. Since the proof of delivery has not been produced before me, I have no option except to take the date of receipt of the order copy served subsequently as date of service of the order and accordingly the appeal is liable to be admitted subject to the condition that the applicant to deposit cost of Rs. 5000/- with the Jurisdictional Commissioner within the period of four weeks and report compliance on 29/7/2015. SCN discharged subject to the deposit of cost.

(Dictated in court)

Ramesh Nair Member (Judicial)

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